Paltu Dutta Vs. S.M. Nibedita Roy - Court Judgment

Excerpt:

Notice (8): Undefined variable: kword [APP/View/Case/amp.ctp, line 120]
Code Context
                                echo "<div class='table-bordered'><b>Excerpt:</b><br/>";

                                    if (trim($desc['Judgement']['casenote'])) {

                                        echo $this->Wand->highlight($this->Excerpt->extractRelevant($kword,strtolower(strip_tags($desc['Judgement']['casenote']))), $query);
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '855494',
			'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
			'appealno' => 'C.O. No. 2048 of 1989',
			'appellant' => 'Paltu Dutta',
			'authreffered' => '',
			'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
			'citingcases' => '',
			'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
			'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1989-09-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Amulya Kumar Nandi, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p style="text-align: justify;">2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p style="text-align: justify;">3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p style="text-align: justify;">4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p style="text-align: justify;">5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p style="text-align: justify;">6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p style="text-align: justify;">The Code of Civil Procedure (West Bengal</p><p style="text-align: justify;">Amendment) Act, 1988</p><p style="text-align: justify;">West Bengal Act XV of 1988</p><p style="text-align: justify;">Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p style="text-align: justify;">An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p style="text-align: justify;">Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p style="text-align: justify;">It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p style="text-align: justify;">1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p style="text-align: justify;"> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p style="text-align: justify;"> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p style="text-align: justify;"> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p style="text-align: justify;"> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p style="text-align: justify;"> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p style="text-align: justify;"> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p style="text-align: justify;"> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p style="text-align: justify;"> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p style="text-align: justify;">7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p style="text-align: justify;">8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p style="text-align: justify;">9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p style="text-align: justify;">10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p style="text-align: justify;">11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p style="text-align: justify;">12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p style="text-align: justify;">13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p style="text-align: justify;">14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p style="text-align: justify;">14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p style="text-align: justify;">15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p style="text-align: justify;">16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p style="text-align: justify;">17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p style="text-align: justify;">18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p style="text-align: justify;">19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p style="text-align: justify;">20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p style="text-align: justify;">21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p style="text-align: justify;">22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p style="text-align: justify;">23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p style="text-align: justify;">24. Order accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1990Cal262,94CWN1',
			'ratiodecidendi' => '',
			'respondent' => 'S.M. Nibedita Roy',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'paltu-dutta-vs-s-m-nibedita-roy',
	'args' => array(
		(int) 0 => '855494',
		(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
	)
)
$title_for_layout = 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '855494',
		'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
		'appealno' => 'C.O. No. 2048 of 1989',
		'appellant' => 'Paltu Dutta',
		'authreffered' => '',
		'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
		'citingcases' => '',
		'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
		'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1989-09-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Amulya Kumar Nandi, J.',
		'judgement' => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p>The Code of Civil Procedure (West Bengal</p><p>Amendment) Act, 1988</p><p>West Bengal Act XV of 1988</p><p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p>24. Order accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1990Cal262,94CWN1',
		'ratiodecidendi' => '',
		'respondent' => 'S.M. Nibedita Roy',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'paltu-dutta-vs-s-m-nibedita-roy'
$args = array(
	(int) 0 => '855494',
	(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
)
$url = 'https://sooperkanoon.com/case/amp/855494/paltu-dutta-vs-s-m-nibedita-roy'
$ctype = ' High Court'
$caseref = 'Hastings Mills Ltd. v. Hira Singh<br>'
include - APP/View/Case/amp.ctp, line 120
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 120]
Code Context
                                echo "<div class='table-bordered'><b>Excerpt:</b><br/>";

                                    if (trim($desc['Judgement']['casenote'])) {

                                        echo $this->Wand->highlight($this->Excerpt->extractRelevant($kword,strtolower(strip_tags($desc['Judgement']['casenote']))), $query);
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '855494',
			'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
			'appealno' => 'C.O. No. 2048 of 1989',
			'appellant' => 'Paltu Dutta',
			'authreffered' => '',
			'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
			'citingcases' => '',
			'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
			'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1989-09-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Amulya Kumar Nandi, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p style="text-align: justify;">2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p style="text-align: justify;">3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p style="text-align: justify;">4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p style="text-align: justify;">5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p style="text-align: justify;">6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p style="text-align: justify;">The Code of Civil Procedure (West Bengal</p><p style="text-align: justify;">Amendment) Act, 1988</p><p style="text-align: justify;">West Bengal Act XV of 1988</p><p style="text-align: justify;">Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p style="text-align: justify;">An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p style="text-align: justify;">Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p style="text-align: justify;">It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p style="text-align: justify;">1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p style="text-align: justify;"> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p style="text-align: justify;"> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p style="text-align: justify;"> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p style="text-align: justify;"> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p style="text-align: justify;"> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p style="text-align: justify;"> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p style="text-align: justify;"> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p style="text-align: justify;"> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p style="text-align: justify;">7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p style="text-align: justify;">8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p style="text-align: justify;">9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p style="text-align: justify;">10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p style="text-align: justify;">11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p style="text-align: justify;">12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p style="text-align: justify;">13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p style="text-align: justify;">14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p style="text-align: justify;">14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p style="text-align: justify;">15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p style="text-align: justify;">16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p style="text-align: justify;">17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p style="text-align: justify;">18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p style="text-align: justify;">19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p style="text-align: justify;">20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p style="text-align: justify;">21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p style="text-align: justify;">22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p style="text-align: justify;">23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p style="text-align: justify;">24. Order accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1990Cal262,94CWN1',
			'ratiodecidendi' => '',
			'respondent' => 'S.M. Nibedita Roy',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'paltu-dutta-vs-s-m-nibedita-roy',
	'args' => array(
		(int) 0 => '855494',
		(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
	)
)
$title_for_layout = 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '855494',
		'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
		'appealno' => 'C.O. No. 2048 of 1989',
		'appellant' => 'Paltu Dutta',
		'authreffered' => '',
		'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
		'citingcases' => '',
		'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
		'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1989-09-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Amulya Kumar Nandi, J.',
		'judgement' => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p>The Code of Civil Procedure (West Bengal</p><p>Amendment) Act, 1988</p><p>West Bengal Act XV of 1988</p><p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p>24. Order accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1990Cal262,94CWN1',
		'ratiodecidendi' => '',
		'respondent' => 'S.M. Nibedita Roy',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'paltu-dutta-vs-s-m-nibedita-roy'
$args = array(
	(int) 0 => '855494',
	(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
)
$url = 'https://sooperkanoon.com/case/amp/855494/paltu-dutta-vs-s-m-nibedita-roy'
$ctype = ' High Court'
$caseref = 'Hastings Mills Ltd. v. Hira Singh<br>'
include - APP/View/Case/amp.ctp, line 120
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

-

Notice (8): Undefined variable: kword [APP/View/Case/amp.ctp, line 123]
Code Context
                                    }

                                //highest occurence of word in the judgement

                                echo $this->Wand->highlight($this->Excerpt->extractRelevant($kword,strtolower(strip_tags($desc['Judgement']['judgement']))), $query) . "</div>";
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '855494',
			'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
			'appealno' => 'C.O. No. 2048 of 1989',
			'appellant' => 'Paltu Dutta',
			'authreffered' => '',
			'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
			'citingcases' => '',
			'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
			'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1989-09-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Amulya Kumar Nandi, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p style="text-align: justify;">2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p style="text-align: justify;">3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p style="text-align: justify;">4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p style="text-align: justify;">5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p style="text-align: justify;">6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p style="text-align: justify;">The Code of Civil Procedure (West Bengal</p><p style="text-align: justify;">Amendment) Act, 1988</p><p style="text-align: justify;">West Bengal Act XV of 1988</p><p style="text-align: justify;">Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p style="text-align: justify;">An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p style="text-align: justify;">Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p style="text-align: justify;">It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p style="text-align: justify;">1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p style="text-align: justify;"> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p style="text-align: justify;"> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p style="text-align: justify;"> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p style="text-align: justify;"> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p style="text-align: justify;"> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p style="text-align: justify;"> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p style="text-align: justify;"> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p style="text-align: justify;"> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p style="text-align: justify;">7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p style="text-align: justify;">8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p style="text-align: justify;">9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p style="text-align: justify;">10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p style="text-align: justify;">11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p style="text-align: justify;">12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p style="text-align: justify;">13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p style="text-align: justify;">14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p style="text-align: justify;">14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p style="text-align: justify;">15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p style="text-align: justify;">16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p style="text-align: justify;">17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p style="text-align: justify;">18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p style="text-align: justify;">19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p style="text-align: justify;">20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p style="text-align: justify;">21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p style="text-align: justify;">22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p style="text-align: justify;">23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p style="text-align: justify;">24. Order accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1990Cal262,94CWN1',
			'ratiodecidendi' => '',
			'respondent' => 'S.M. Nibedita Roy',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'paltu-dutta-vs-s-m-nibedita-roy',
	'args' => array(
		(int) 0 => '855494',
		(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
	)
)
$title_for_layout = 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '855494',
		'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
		'appealno' => 'C.O. No. 2048 of 1989',
		'appellant' => 'Paltu Dutta',
		'authreffered' => '',
		'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
		'citingcases' => '',
		'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
		'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1989-09-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Amulya Kumar Nandi, J.',
		'judgement' => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p>The Code of Civil Procedure (West Bengal</p><p>Amendment) Act, 1988</p><p>West Bengal Act XV of 1988</p><p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p>24. Order accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1990Cal262,94CWN1',
		'ratiodecidendi' => '',
		'respondent' => 'S.M. Nibedita Roy',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'paltu-dutta-vs-s-m-nibedita-roy'
$args = array(
	(int) 0 => '855494',
	(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
)
$url = 'https://sooperkanoon.com/case/amp/855494/paltu-dutta-vs-s-m-nibedita-roy'
$ctype = ' High Court'
$caseref = 'Hastings Mills Ltd. v. Hira Singh<br>'
include - APP/View/Case/amp.ctp, line 123
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 123]
Code Context
                                    }

                                //highest occurence of word in the judgement

                                echo $this->Wand->highlight($this->Excerpt->extractRelevant($kword,strtolower(strip_tags($desc['Judgement']['judgement']))), $query) . "</div>";
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '855494',
			'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
			'appealno' => 'C.O. No. 2048 of 1989',
			'appellant' => 'Paltu Dutta',
			'authreffered' => '',
			'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
			'citingcases' => '',
			'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
			'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1989-09-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Amulya Kumar Nandi, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p style="text-align: justify;">2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p style="text-align: justify;">3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p style="text-align: justify;">4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p style="text-align: justify;">5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p style="text-align: justify;">6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p style="text-align: justify;">The Code of Civil Procedure (West Bengal</p><p style="text-align: justify;">Amendment) Act, 1988</p><p style="text-align: justify;">West Bengal Act XV of 1988</p><p style="text-align: justify;">Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p style="text-align: justify;">An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p style="text-align: justify;">Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p style="text-align: justify;">It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p style="text-align: justify;">1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p style="text-align: justify;"> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p style="text-align: justify;"> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p style="text-align: justify;"> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p style="text-align: justify;"> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p style="text-align: justify;"> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p style="text-align: justify;"> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p style="text-align: justify;"> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p style="text-align: justify;"> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p style="text-align: justify;">7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p style="text-align: justify;">8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p style="text-align: justify;">9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p style="text-align: justify;">10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p style="text-align: justify;">11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p style="text-align: justify;">12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p style="text-align: justify;">13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p style="text-align: justify;">14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p style="text-align: justify;">14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p style="text-align: justify;">15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p style="text-align: justify;">16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p style="text-align: justify;">17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p style="text-align: justify;">18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p style="text-align: justify;">19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p style="text-align: justify;">20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p style="text-align: justify;">21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p style="text-align: justify;">22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p style="text-align: justify;">23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p style="text-align: justify;">24. Order accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1990Cal262,94CWN1',
			'ratiodecidendi' => '',
			'respondent' => 'S.M. Nibedita Roy',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'paltu-dutta-vs-s-m-nibedita-roy',
	'args' => array(
		(int) 0 => '855494',
		(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
	)
)
$title_for_layout = 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '855494',
		'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
		'appealno' => 'C.O. No. 2048 of 1989',
		'appellant' => 'Paltu Dutta',
		'authreffered' => '',
		'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
		'citingcases' => '',
		'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
		'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1989-09-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Amulya Kumar Nandi, J.',
		'judgement' => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p>The Code of Civil Procedure (West Bengal</p><p>Amendment) Act, 1988</p><p>West Bengal Act XV of 1988</p><p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p>24. Order accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1990Cal262,94CWN1',
		'ratiodecidendi' => '',
		'respondent' => 'S.M. Nibedita Roy',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'paltu-dutta-vs-s-m-nibedita-roy'
$args = array(
	(int) 0 => '855494',
	(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
)
$url = 'https://sooperkanoon.com/case/amp/855494/paltu-dutta-vs-s-m-nibedita-roy'
$ctype = ' High Court'
$caseref = 'Hastings Mills Ltd. v. Hira Singh<br>'
include - APP/View/Case/amp.ctp, line 123
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

order1. this revision has been preferred against the judgment and order dt. 26-7-89 passed by additional district judge, 6th court, alipore and order nos.81 and 82 dated 23-6-89 passed in title execution case no. 11 of 1981 by the 1st additional court of munsif, alipore.2. the petitioner filed a petition under o.1 r. 10 c.p.c. for addition as a party judgment debtor in title execution case no. 11 of 1981 pending before the munsif and filed another petition of objection against the execution of the decree under. s. 47 c.p.c. the executing court rejected the petition under s. 47 c.p.c. it further held that thepetition under s. 47 c.p.c. and the prayer for staying the execution petition can no more survive the rejection of the petition under o. 1 r. 10 c.p.c.3. the petitioner moved in.....

Judgment:

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
Code Context
                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '855494',
			'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
			'appealno' => 'C.O. No. 2048 of 1989',
			'appellant' => 'Paltu Dutta',
			'authreffered' => '',
			'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
			'citingcases' => '',
			'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
			'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1989-09-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Amulya Kumar Nandi, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p style="text-align: justify;">2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p style="text-align: justify;">3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p style="text-align: justify;">4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p style="text-align: justify;">5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p style="text-align: justify;">6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p style="text-align: justify;">The Code of Civil Procedure (West Bengal</p><p style="text-align: justify;">Amendment) Act, 1988</p><p style="text-align: justify;">West Bengal Act XV of 1988</p><p style="text-align: justify;">Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p style="text-align: justify;">An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p style="text-align: justify;">Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p style="text-align: justify;">It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p style="text-align: justify;">1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p style="text-align: justify;"> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p style="text-align: justify;"> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p style="text-align: justify;"> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p style="text-align: justify;"> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p style="text-align: justify;"> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p style="text-align: justify;"> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p style="text-align: justify;"> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p style="text-align: justify;"> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p style="text-align: justify;">7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p style="text-align: justify;">8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p style="text-align: justify;">9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p style="text-align: justify;">10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p style="text-align: justify;">11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p style="text-align: justify;">12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p style="text-align: justify;">13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p style="text-align: justify;">14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p style="text-align: justify;">14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p style="text-align: justify;">15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p style="text-align: justify;">16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p style="text-align: justify;">17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p style="text-align: justify;">18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p style="text-align: justify;">19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p style="text-align: justify;">20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p style="text-align: justify;">21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p style="text-align: justify;">22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p style="text-align: justify;">23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p style="text-align: justify;">24. Order accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1990Cal262,94CWN1',
			'ratiodecidendi' => '',
			'respondent' => 'S.M. Nibedita Roy',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'paltu-dutta-vs-s-m-nibedita-roy',
	'args' => array(
		(int) 0 => '855494',
		(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
	)
)
$title_for_layout = 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '855494',
		'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
		'appealno' => 'C.O. No. 2048 of 1989',
		'appellant' => 'Paltu Dutta',
		'authreffered' => '',
		'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
		'citingcases' => '',
		'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
		'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1989-09-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Amulya Kumar Nandi, J.',
		'judgement' => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p>The Code of Civil Procedure (West Bengal</p><p>Amendment) Act, 1988</p><p>West Bengal Act XV of 1988</p><p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p>24. Order accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1990Cal262,94CWN1',
		'ratiodecidendi' => '',
		'respondent' => 'S.M. Nibedita Roy',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'paltu-dutta-vs-s-m-nibedita-roy'
$args = array(
	(int) 0 => '855494',
	(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
)
$url = 'https://sooperkanoon.com/case/amp/855494/paltu-dutta-vs-s-m-nibedita-roy'
$ctype = ' High Court'
$caseref = 'Hastings Mills Ltd. v. Hira Singh<br>'
$content = array(
	(int) 0 => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.',
	(int) 1 => '<p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.',
	(int) 2 => '<p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.',
	(int) 3 => '<p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,',
	(int) 4 => '<p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.',
	(int) 5 => '<p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.',
	(int) 6 => '<p>The Code of Civil Procedure (West Bengal',
	(int) 7 => '<p>Amendment) Act, 1988',
	(int) 8 => '<p>West Bengal Act XV of 1988',
	(int) 9 => '<p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.',
	(int) 10 => '<p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.',
	(int) 11 => '<p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.',
	(int) 12 => '<p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--',
	(int) 13 => '<p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-',
	(int) 14 => '<p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.',
	(int) 15 => '<p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.',
	(int) 16 => '<p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--',
	(int) 17 => '<p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.',
	(int) 18 => '<p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.',
	(int) 19 => '<p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.',
	(int) 20 => '<p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.',
	(int) 21 => '<p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' ',
	(int) 22 => '<p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .',
	(int) 23 => '<p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.',
	(int) 24 => '<p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.',
	(int) 25 => '<p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.',
	(int) 26 => '<p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.',
	(int) 27 => '<p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.',
	(int) 28 => '<p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.',
	(int) 29 => '<p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.',
	(int) 30 => '<p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.',
	(int) 31 => '<p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.',
	(int) 32 => '<p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.',
	(int) 33 => '<p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.',
	(int) 34 => '<p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.',
	(int) 35 => '<p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.',
	(int) 36 => '<p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.',
	(int) 37 => '<p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.',
	(int) 38 => '<p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.',
	(int) 39 => '<p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.',
	(int) 40 => '<p>24. Order accordingly.<p>',
	(int) 41 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 42
$i = (int) 0
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

ORDER

1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
Code Context
                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '855494',
			'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
			'appealno' => 'C.O. No. 2048 of 1989',
			'appellant' => 'Paltu Dutta',
			'authreffered' => '',
			'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
			'citingcases' => '',
			'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
			'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1989-09-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Amulya Kumar Nandi, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p style="text-align: justify;">2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p style="text-align: justify;">3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p style="text-align: justify;">4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p style="text-align: justify;">5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p style="text-align: justify;">6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p style="text-align: justify;">The Code of Civil Procedure (West Bengal</p><p style="text-align: justify;">Amendment) Act, 1988</p><p style="text-align: justify;">West Bengal Act XV of 1988</p><p style="text-align: justify;">Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p style="text-align: justify;">An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p style="text-align: justify;">Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p style="text-align: justify;">It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p style="text-align: justify;">1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p style="text-align: justify;"> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p style="text-align: justify;"> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p style="text-align: justify;"> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p style="text-align: justify;"> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p style="text-align: justify;"> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p style="text-align: justify;"> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p style="text-align: justify;"> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p style="text-align: justify;"> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p style="text-align: justify;">7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p style="text-align: justify;">8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p style="text-align: justify;">9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p style="text-align: justify;">10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p style="text-align: justify;">11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p style="text-align: justify;">12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p style="text-align: justify;">13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p style="text-align: justify;">14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p style="text-align: justify;">14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p style="text-align: justify;">15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p style="text-align: justify;">16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p style="text-align: justify;">17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p style="text-align: justify;">18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p style="text-align: justify;">19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p style="text-align: justify;">20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p style="text-align: justify;">21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p style="text-align: justify;">22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p style="text-align: justify;">23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p style="text-align: justify;">24. Order accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1990Cal262,94CWN1',
			'ratiodecidendi' => '',
			'respondent' => 'S.M. Nibedita Roy',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'paltu-dutta-vs-s-m-nibedita-roy',
	'args' => array(
		(int) 0 => '855494',
		(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
	)
)
$title_for_layout = 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '855494',
		'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
		'appealno' => 'C.O. No. 2048 of 1989',
		'appellant' => 'Paltu Dutta',
		'authreffered' => '',
		'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
		'citingcases' => '',
		'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
		'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1989-09-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Amulya Kumar Nandi, J.',
		'judgement' => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p>The Code of Civil Procedure (West Bengal</p><p>Amendment) Act, 1988</p><p>West Bengal Act XV of 1988</p><p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p>24. Order accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1990Cal262,94CWN1',
		'ratiodecidendi' => '',
		'respondent' => 'S.M. Nibedita Roy',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'paltu-dutta-vs-s-m-nibedita-roy'
$args = array(
	(int) 0 => '855494',
	(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
)
$url = 'https://sooperkanoon.com/case/amp/855494/paltu-dutta-vs-s-m-nibedita-roy'
$ctype = ' High Court'
$caseref = 'Hastings Mills Ltd. v. Hira Singh<br>'
$content = array(
	(int) 0 => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.',
	(int) 1 => '<p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.',
	(int) 2 => '<p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.',
	(int) 3 => '<p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,',
	(int) 4 => '<p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.',
	(int) 5 => '<p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.',
	(int) 6 => '<p>The Code of Civil Procedure (West Bengal',
	(int) 7 => '<p>Amendment) Act, 1988',
	(int) 8 => '<p>West Bengal Act XV of 1988',
	(int) 9 => '<p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.',
	(int) 10 => '<p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.',
	(int) 11 => '<p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.',
	(int) 12 => '<p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--',
	(int) 13 => '<p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-',
	(int) 14 => '<p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.',
	(int) 15 => '<p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.',
	(int) 16 => '<p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--',
	(int) 17 => '<p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.',
	(int) 18 => '<p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.',
	(int) 19 => '<p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.',
	(int) 20 => '<p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.',
	(int) 21 => '<p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' ',
	(int) 22 => '<p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .',
	(int) 23 => '<p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.',
	(int) 24 => '<p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.',
	(int) 25 => '<p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.',
	(int) 26 => '<p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.',
	(int) 27 => '<p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.',
	(int) 28 => '<p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.',
	(int) 29 => '<p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.',
	(int) 30 => '<p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.',
	(int) 31 => '<p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.',
	(int) 32 => '<p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.',
	(int) 33 => '<p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.',
	(int) 34 => '<p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.',
	(int) 35 => '<p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.',
	(int) 36 => '<p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.',
	(int) 37 => '<p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.',
	(int) 38 => '<p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.',
	(int) 39 => '<p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.',
	(int) 40 => '<p>24. Order accordingly.<p>',
	(int) 41 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 42
$i = (int) 1
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
Code Context
                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '855494',
			'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
			'appealno' => 'C.O. No. 2048 of 1989',
			'appellant' => 'Paltu Dutta',
			'authreffered' => '',
			'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
			'citingcases' => '',
			'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
			'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1989-09-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Amulya Kumar Nandi, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p style="text-align: justify;">2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p style="text-align: justify;">3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p style="text-align: justify;">4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p style="text-align: justify;">5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p style="text-align: justify;">6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p style="text-align: justify;">The Code of Civil Procedure (West Bengal</p><p style="text-align: justify;">Amendment) Act, 1988</p><p style="text-align: justify;">West Bengal Act XV of 1988</p><p style="text-align: justify;">Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p style="text-align: justify;">An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p style="text-align: justify;">Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p style="text-align: justify;">It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p style="text-align: justify;">1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p style="text-align: justify;"> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p style="text-align: justify;"> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p style="text-align: justify;"> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p style="text-align: justify;"> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p style="text-align: justify;"> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p style="text-align: justify;"> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p style="text-align: justify;"> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p style="text-align: justify;"> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p style="text-align: justify;">7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p style="text-align: justify;">8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p style="text-align: justify;">9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p style="text-align: justify;">10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p style="text-align: justify;">11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p style="text-align: justify;">12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p style="text-align: justify;">13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p style="text-align: justify;">14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p style="text-align: justify;">14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p style="text-align: justify;">15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p style="text-align: justify;">16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p style="text-align: justify;">17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p style="text-align: justify;">18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p style="text-align: justify;">19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p style="text-align: justify;">20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p style="text-align: justify;">21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p style="text-align: justify;">22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p style="text-align: justify;">23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p style="text-align: justify;">24. Order accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1990Cal262,94CWN1',
			'ratiodecidendi' => '',
			'respondent' => 'S.M. Nibedita Roy',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'paltu-dutta-vs-s-m-nibedita-roy',
	'args' => array(
		(int) 0 => '855494',
		(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
	)
)
$title_for_layout = 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '855494',
		'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
		'appealno' => 'C.O. No. 2048 of 1989',
		'appellant' => 'Paltu Dutta',
		'authreffered' => '',
		'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
		'citingcases' => '',
		'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
		'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1989-09-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Amulya Kumar Nandi, J.',
		'judgement' => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p>The Code of Civil Procedure (West Bengal</p><p>Amendment) Act, 1988</p><p>West Bengal Act XV of 1988</p><p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p>24. Order accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1990Cal262,94CWN1',
		'ratiodecidendi' => '',
		'respondent' => 'S.M. Nibedita Roy',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'paltu-dutta-vs-s-m-nibedita-roy'
$args = array(
	(int) 0 => '855494',
	(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
)
$url = 'https://sooperkanoon.com/case/amp/855494/paltu-dutta-vs-s-m-nibedita-roy'
$ctype = ' High Court'
$caseref = 'Hastings Mills Ltd. v. Hira Singh<br>'
$content = array(
	(int) 0 => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.',
	(int) 1 => '<p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.',
	(int) 2 => '<p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.',
	(int) 3 => '<p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,',
	(int) 4 => '<p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.',
	(int) 5 => '<p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.',
	(int) 6 => '<p>The Code of Civil Procedure (West Bengal',
	(int) 7 => '<p>Amendment) Act, 1988',
	(int) 8 => '<p>West Bengal Act XV of 1988',
	(int) 9 => '<p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.',
	(int) 10 => '<p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.',
	(int) 11 => '<p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.',
	(int) 12 => '<p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--',
	(int) 13 => '<p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-',
	(int) 14 => '<p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.',
	(int) 15 => '<p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.',
	(int) 16 => '<p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--',
	(int) 17 => '<p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.',
	(int) 18 => '<p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.',
	(int) 19 => '<p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.',
	(int) 20 => '<p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.',
	(int) 21 => '<p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' ',
	(int) 22 => '<p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .',
	(int) 23 => '<p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.',
	(int) 24 => '<p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.',
	(int) 25 => '<p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.',
	(int) 26 => '<p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.',
	(int) 27 => '<p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.',
	(int) 28 => '<p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.',
	(int) 29 => '<p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.',
	(int) 30 => '<p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.',
	(int) 31 => '<p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.',
	(int) 32 => '<p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.',
	(int) 33 => '<p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.',
	(int) 34 => '<p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.',
	(int) 35 => '<p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.',
	(int) 36 => '<p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.',
	(int) 37 => '<p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.',
	(int) 38 => '<p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.',
	(int) 39 => '<p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.',
	(int) 40 => '<p>24. Order accordingly.<p>',
	(int) 41 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 42
$i = (int) 2
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
Code Context
                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '855494',
			'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
			'appealno' => 'C.O. No. 2048 of 1989',
			'appellant' => 'Paltu Dutta',
			'authreffered' => '',
			'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
			'citingcases' => '',
			'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
			'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1989-09-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Amulya Kumar Nandi, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p style="text-align: justify;">2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p style="text-align: justify;">3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p style="text-align: justify;">4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p style="text-align: justify;">5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p style="text-align: justify;">6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p style="text-align: justify;">The Code of Civil Procedure (West Bengal</p><p style="text-align: justify;">Amendment) Act, 1988</p><p style="text-align: justify;">West Bengal Act XV of 1988</p><p style="text-align: justify;">Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p style="text-align: justify;">An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p style="text-align: justify;">Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p style="text-align: justify;">It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p style="text-align: justify;">1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p style="text-align: justify;"> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p style="text-align: justify;"> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p style="text-align: justify;"> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p style="text-align: justify;"> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p style="text-align: justify;"> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p style="text-align: justify;"> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p style="text-align: justify;"> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p style="text-align: justify;"> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p style="text-align: justify;">7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p style="text-align: justify;">8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p style="text-align: justify;">9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p style="text-align: justify;">10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p style="text-align: justify;">11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p style="text-align: justify;">12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p style="text-align: justify;">13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p style="text-align: justify;">14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p style="text-align: justify;">14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p style="text-align: justify;">15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p style="text-align: justify;">16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p style="text-align: justify;">17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p style="text-align: justify;">18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p style="text-align: justify;">19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p style="text-align: justify;">20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p style="text-align: justify;">21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p style="text-align: justify;">22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p style="text-align: justify;">23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p style="text-align: justify;">24. Order accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1990Cal262,94CWN1',
			'ratiodecidendi' => '',
			'respondent' => 'S.M. Nibedita Roy',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'paltu-dutta-vs-s-m-nibedita-roy',
	'args' => array(
		(int) 0 => '855494',
		(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
	)
)
$title_for_layout = 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '855494',
		'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
		'appealno' => 'C.O. No. 2048 of 1989',
		'appellant' => 'Paltu Dutta',
		'authreffered' => '',
		'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
		'citingcases' => '',
		'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
		'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1989-09-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Amulya Kumar Nandi, J.',
		'judgement' => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p>The Code of Civil Procedure (West Bengal</p><p>Amendment) Act, 1988</p><p>West Bengal Act XV of 1988</p><p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p>24. Order accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1990Cal262,94CWN1',
		'ratiodecidendi' => '',
		'respondent' => 'S.M. Nibedita Roy',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'paltu-dutta-vs-s-m-nibedita-roy'
$args = array(
	(int) 0 => '855494',
	(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
)
$url = 'https://sooperkanoon.com/case/amp/855494/paltu-dutta-vs-s-m-nibedita-roy'
$ctype = ' High Court'
$caseref = 'Hastings Mills Ltd. v. Hira Singh<br>'
$content = array(
	(int) 0 => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.',
	(int) 1 => '<p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.',
	(int) 2 => '<p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.',
	(int) 3 => '<p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,',
	(int) 4 => '<p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.',
	(int) 5 => '<p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.',
	(int) 6 => '<p>The Code of Civil Procedure (West Bengal',
	(int) 7 => '<p>Amendment) Act, 1988',
	(int) 8 => '<p>West Bengal Act XV of 1988',
	(int) 9 => '<p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.',
	(int) 10 => '<p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.',
	(int) 11 => '<p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.',
	(int) 12 => '<p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--',
	(int) 13 => '<p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-',
	(int) 14 => '<p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.',
	(int) 15 => '<p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.',
	(int) 16 => '<p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--',
	(int) 17 => '<p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.',
	(int) 18 => '<p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.',
	(int) 19 => '<p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.',
	(int) 20 => '<p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.',
	(int) 21 => '<p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' ',
	(int) 22 => '<p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .',
	(int) 23 => '<p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.',
	(int) 24 => '<p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.',
	(int) 25 => '<p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.',
	(int) 26 => '<p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.',
	(int) 27 => '<p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.',
	(int) 28 => '<p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.',
	(int) 29 => '<p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.',
	(int) 30 => '<p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.',
	(int) 31 => '<p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.',
	(int) 32 => '<p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.',
	(int) 33 => '<p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.',
	(int) 34 => '<p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.',
	(int) 35 => '<p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.',
	(int) 36 => '<p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.',
	(int) 37 => '<p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.',
	(int) 38 => '<p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.',
	(int) 39 => '<p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.',
	(int) 40 => '<p>24. Order accordingly.<p>',
	(int) 41 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 42
$i = (int) 3
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
Code Context
                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '855494',
			'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
			'appealno' => 'C.O. No. 2048 of 1989',
			'appellant' => 'Paltu Dutta',
			'authreffered' => '',
			'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
			'citingcases' => '',
			'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
			'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1989-09-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Amulya Kumar Nandi, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p style="text-align: justify;">2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p style="text-align: justify;">3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p style="text-align: justify;">4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p style="text-align: justify;">5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p style="text-align: justify;">6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p style="text-align: justify;">The Code of Civil Procedure (West Bengal</p><p style="text-align: justify;">Amendment) Act, 1988</p><p style="text-align: justify;">West Bengal Act XV of 1988</p><p style="text-align: justify;">Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p style="text-align: justify;">An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p style="text-align: justify;">Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p style="text-align: justify;">It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p style="text-align: justify;">1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p style="text-align: justify;"> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p style="text-align: justify;"> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p style="text-align: justify;"> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p style="text-align: justify;"> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p style="text-align: justify;"> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p style="text-align: justify;"> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p style="text-align: justify;"> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p style="text-align: justify;"> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p style="text-align: justify;">7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p style="text-align: justify;">8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p style="text-align: justify;">9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p style="text-align: justify;">10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p style="text-align: justify;">11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p style="text-align: justify;">12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p style="text-align: justify;">13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p style="text-align: justify;">14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p style="text-align: justify;">14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p style="text-align: justify;">15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p style="text-align: justify;">16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p style="text-align: justify;">17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p style="text-align: justify;">18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p style="text-align: justify;">19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p style="text-align: justify;">20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p style="text-align: justify;">21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p style="text-align: justify;">22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p style="text-align: justify;">23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p style="text-align: justify;">24. Order accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1990Cal262,94CWN1',
			'ratiodecidendi' => '',
			'respondent' => 'S.M. Nibedita Roy',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'paltu-dutta-vs-s-m-nibedita-roy',
	'args' => array(
		(int) 0 => '855494',
		(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
	)
)
$title_for_layout = 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '855494',
		'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
		'appealno' => 'C.O. No. 2048 of 1989',
		'appellant' => 'Paltu Dutta',
		'authreffered' => '',
		'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
		'citingcases' => '',
		'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
		'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1989-09-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Amulya Kumar Nandi, J.',
		'judgement' => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p>The Code of Civil Procedure (West Bengal</p><p>Amendment) Act, 1988</p><p>West Bengal Act XV of 1988</p><p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p>24. Order accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1990Cal262,94CWN1',
		'ratiodecidendi' => '',
		'respondent' => 'S.M. Nibedita Roy',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'paltu-dutta-vs-s-m-nibedita-roy'
$args = array(
	(int) 0 => '855494',
	(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
)
$url = 'https://sooperkanoon.com/case/amp/855494/paltu-dutta-vs-s-m-nibedita-roy'
$ctype = ' High Court'
$caseref = 'Hastings Mills Ltd. v. Hira Singh<br>'
$content = array(
	(int) 0 => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.',
	(int) 1 => '<p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.',
	(int) 2 => '<p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.',
	(int) 3 => '<p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,',
	(int) 4 => '<p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.',
	(int) 5 => '<p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.',
	(int) 6 => '<p>The Code of Civil Procedure (West Bengal',
	(int) 7 => '<p>Amendment) Act, 1988',
	(int) 8 => '<p>West Bengal Act XV of 1988',
	(int) 9 => '<p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.',
	(int) 10 => '<p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.',
	(int) 11 => '<p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.',
	(int) 12 => '<p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--',
	(int) 13 => '<p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-',
	(int) 14 => '<p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.',
	(int) 15 => '<p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.',
	(int) 16 => '<p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--',
	(int) 17 => '<p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.',
	(int) 18 => '<p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.',
	(int) 19 => '<p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.',
	(int) 20 => '<p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.',
	(int) 21 => '<p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' ',
	(int) 22 => '<p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .',
	(int) 23 => '<p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.',
	(int) 24 => '<p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.',
	(int) 25 => '<p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.',
	(int) 26 => '<p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.',
	(int) 27 => '<p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.',
	(int) 28 => '<p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.',
	(int) 29 => '<p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.',
	(int) 30 => '<p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.',
	(int) 31 => '<p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.',
	(int) 32 => '<p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.',
	(int) 33 => '<p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.',
	(int) 34 => '<p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.',
	(int) 35 => '<p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.',
	(int) 36 => '<p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.',
	(int) 37 => '<p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.',
	(int) 38 => '<p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.',
	(int) 39 => '<p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.',
	(int) 40 => '<p>24. Order accordingly.<p>',
	(int) 41 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 42
$i = (int) 4
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
Code Context
                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '855494',
			'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
			'appealno' => 'C.O. No. 2048 of 1989',
			'appellant' => 'Paltu Dutta',
			'authreffered' => '',
			'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
			'citingcases' => '',
			'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
			'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1989-09-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Amulya Kumar Nandi, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p style="text-align: justify;">2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p style="text-align: justify;">3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p style="text-align: justify;">4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p style="text-align: justify;">5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p style="text-align: justify;">6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p style="text-align: justify;">The Code of Civil Procedure (West Bengal</p><p style="text-align: justify;">Amendment) Act, 1988</p><p style="text-align: justify;">West Bengal Act XV of 1988</p><p style="text-align: justify;">Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p style="text-align: justify;">An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p style="text-align: justify;">Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p style="text-align: justify;">It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p style="text-align: justify;">1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p style="text-align: justify;"> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p style="text-align: justify;"> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p style="text-align: justify;"> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p style="text-align: justify;"> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p style="text-align: justify;"> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p style="text-align: justify;"> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p style="text-align: justify;"> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p style="text-align: justify;"> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p style="text-align: justify;">7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p style="text-align: justify;">8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p style="text-align: justify;">9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p style="text-align: justify;">10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p style="text-align: justify;">11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p style="text-align: justify;">12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p style="text-align: justify;">13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p style="text-align: justify;">14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p style="text-align: justify;">14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p style="text-align: justify;">15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p style="text-align: justify;">16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p style="text-align: justify;">17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p style="text-align: justify;">18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p style="text-align: justify;">19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p style="text-align: justify;">20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p style="text-align: justify;">21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p style="text-align: justify;">22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p style="text-align: justify;">23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p style="text-align: justify;">24. Order accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1990Cal262,94CWN1',
			'ratiodecidendi' => '',
			'respondent' => 'S.M. Nibedita Roy',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'paltu-dutta-vs-s-m-nibedita-roy',
	'args' => array(
		(int) 0 => '855494',
		(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
	)
)
$title_for_layout = 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '855494',
		'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
		'appealno' => 'C.O. No. 2048 of 1989',
		'appellant' => 'Paltu Dutta',
		'authreffered' => '',
		'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
		'citingcases' => '',
		'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
		'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1989-09-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Amulya Kumar Nandi, J.',
		'judgement' => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p>The Code of Civil Procedure (West Bengal</p><p>Amendment) Act, 1988</p><p>West Bengal Act XV of 1988</p><p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p>24. Order accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1990Cal262,94CWN1',
		'ratiodecidendi' => '',
		'respondent' => 'S.M. Nibedita Roy',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'paltu-dutta-vs-s-m-nibedita-roy'
$args = array(
	(int) 0 => '855494',
	(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
)
$url = 'https://sooperkanoon.com/case/amp/855494/paltu-dutta-vs-s-m-nibedita-roy'
$ctype = ' High Court'
$caseref = 'Hastings Mills Ltd. v. Hira Singh<br>'
$content = array(
	(int) 0 => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.',
	(int) 1 => '<p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.',
	(int) 2 => '<p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.',
	(int) 3 => '<p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,',
	(int) 4 => '<p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.',
	(int) 5 => '<p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.',
	(int) 6 => '<p>The Code of Civil Procedure (West Bengal',
	(int) 7 => '<p>Amendment) Act, 1988',
	(int) 8 => '<p>West Bengal Act XV of 1988',
	(int) 9 => '<p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.',
	(int) 10 => '<p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.',
	(int) 11 => '<p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.',
	(int) 12 => '<p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--',
	(int) 13 => '<p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-',
	(int) 14 => '<p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.',
	(int) 15 => '<p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.',
	(int) 16 => '<p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--',
	(int) 17 => '<p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.',
	(int) 18 => '<p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.',
	(int) 19 => '<p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.',
	(int) 20 => '<p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.',
	(int) 21 => '<p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' ',
	(int) 22 => '<p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .',
	(int) 23 => '<p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.',
	(int) 24 => '<p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.',
	(int) 25 => '<p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.',
	(int) 26 => '<p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.',
	(int) 27 => '<p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.',
	(int) 28 => '<p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.',
	(int) 29 => '<p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.',
	(int) 30 => '<p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.',
	(int) 31 => '<p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.',
	(int) 32 => '<p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.',
	(int) 33 => '<p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.',
	(int) 34 => '<p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.',
	(int) 35 => '<p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.',
	(int) 36 => '<p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.',
	(int) 37 => '<p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.',
	(int) 38 => '<p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.',
	(int) 39 => '<p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.',
	(int) 40 => '<p>24. Order accordingly.<p>',
	(int) 41 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 42
$i = (int) 5
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
Code Context
                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '855494',
			'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
			'appealno' => 'C.O. No. 2048 of 1989',
			'appellant' => 'Paltu Dutta',
			'authreffered' => '',
			'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
			'citingcases' => '',
			'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
			'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1989-09-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Amulya Kumar Nandi, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p style="text-align: justify;">2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p style="text-align: justify;">3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p style="text-align: justify;">4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p style="text-align: justify;">5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p style="text-align: justify;">6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p style="text-align: justify;">The Code of Civil Procedure (West Bengal</p><p style="text-align: justify;">Amendment) Act, 1988</p><p style="text-align: justify;">West Bengal Act XV of 1988</p><p style="text-align: justify;">Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p style="text-align: justify;">An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p style="text-align: justify;">Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p style="text-align: justify;">It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p style="text-align: justify;">1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p style="text-align: justify;"> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p style="text-align: justify;"> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p style="text-align: justify;"> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p style="text-align: justify;"> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p style="text-align: justify;"> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p style="text-align: justify;"> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p style="text-align: justify;"> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p style="text-align: justify;"> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p style="text-align: justify;">7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p style="text-align: justify;">8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p style="text-align: justify;">9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p style="text-align: justify;">10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p style="text-align: justify;">11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p style="text-align: justify;">12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p style="text-align: justify;">13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p style="text-align: justify;">14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p style="text-align: justify;">14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p style="text-align: justify;">15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p style="text-align: justify;">16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p style="text-align: justify;">17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p style="text-align: justify;">18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p style="text-align: justify;">19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p style="text-align: justify;">20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p style="text-align: justify;">21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p style="text-align: justify;">22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p style="text-align: justify;">23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p style="text-align: justify;">24. Order accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1990Cal262,94CWN1',
			'ratiodecidendi' => '',
			'respondent' => 'S.M. Nibedita Roy',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'paltu-dutta-vs-s-m-nibedita-roy',
	'args' => array(
		(int) 0 => '855494',
		(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
	)
)
$title_for_layout = 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '855494',
		'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
		'appealno' => 'C.O. No. 2048 of 1989',
		'appellant' => 'Paltu Dutta',
		'authreffered' => '',
		'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
		'citingcases' => '',
		'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
		'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1989-09-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Amulya Kumar Nandi, J.',
		'judgement' => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p>The Code of Civil Procedure (West Bengal</p><p>Amendment) Act, 1988</p><p>West Bengal Act XV of 1988</p><p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p>24. Order accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1990Cal262,94CWN1',
		'ratiodecidendi' => '',
		'respondent' => 'S.M. Nibedita Roy',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'paltu-dutta-vs-s-m-nibedita-roy'
$args = array(
	(int) 0 => '855494',
	(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
)
$url = 'https://sooperkanoon.com/case/amp/855494/paltu-dutta-vs-s-m-nibedita-roy'
$ctype = ' High Court'
$caseref = 'Hastings Mills Ltd. v. Hira Singh<br>'
$content = array(
	(int) 0 => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.',
	(int) 1 => '<p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.',
	(int) 2 => '<p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.',
	(int) 3 => '<p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,',
	(int) 4 => '<p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.',
	(int) 5 => '<p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.',
	(int) 6 => '<p>The Code of Civil Procedure (West Bengal',
	(int) 7 => '<p>Amendment) Act, 1988',
	(int) 8 => '<p>West Bengal Act XV of 1988',
	(int) 9 => '<p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.',
	(int) 10 => '<p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.',
	(int) 11 => '<p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.',
	(int) 12 => '<p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--',
	(int) 13 => '<p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-',
	(int) 14 => '<p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.',
	(int) 15 => '<p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.',
	(int) 16 => '<p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--',
	(int) 17 => '<p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.',
	(int) 18 => '<p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.',
	(int) 19 => '<p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.',
	(int) 20 => '<p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.',
	(int) 21 => '<p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' ',
	(int) 22 => '<p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .',
	(int) 23 => '<p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.',
	(int) 24 => '<p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.',
	(int) 25 => '<p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.',
	(int) 26 => '<p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.',
	(int) 27 => '<p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.',
	(int) 28 => '<p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.',
	(int) 29 => '<p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.',
	(int) 30 => '<p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.',
	(int) 31 => '<p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.',
	(int) 32 => '<p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.',
	(int) 33 => '<p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.',
	(int) 34 => '<p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.',
	(int) 35 => '<p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.',
	(int) 36 => '<p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.',
	(int) 37 => '<p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.',
	(int) 38 => '<p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.',
	(int) 39 => '<p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.',
	(int) 40 => '<p>24. Order accordingly.<p>',
	(int) 41 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 42
$i = (int) 6
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

The Code of Civil Procedure (West Bengal

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
Code Context
                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '855494',
			'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
			'appealno' => 'C.O. No. 2048 of 1989',
			'appellant' => 'Paltu Dutta',
			'authreffered' => '',
			'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
			'citingcases' => '',
			'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
			'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1989-09-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Amulya Kumar Nandi, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p style="text-align: justify;">2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p style="text-align: justify;">3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p style="text-align: justify;">4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p style="text-align: justify;">5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p style="text-align: justify;">6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p style="text-align: justify;">The Code of Civil Procedure (West Bengal</p><p style="text-align: justify;">Amendment) Act, 1988</p><p style="text-align: justify;">West Bengal Act XV of 1988</p><p style="text-align: justify;">Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p style="text-align: justify;">An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p style="text-align: justify;">Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p style="text-align: justify;">It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p style="text-align: justify;">1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p style="text-align: justify;"> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p style="text-align: justify;"> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p style="text-align: justify;"> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p style="text-align: justify;"> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p style="text-align: justify;"> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p style="text-align: justify;"> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p style="text-align: justify;"> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p style="text-align: justify;"> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p style="text-align: justify;">7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p style="text-align: justify;">8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p style="text-align: justify;">9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p style="text-align: justify;">10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p style="text-align: justify;">11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p style="text-align: justify;">12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p style="text-align: justify;">13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p style="text-align: justify;">14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p style="text-align: justify;">14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p style="text-align: justify;">15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p style="text-align: justify;">16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p style="text-align: justify;">17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p style="text-align: justify;">18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p style="text-align: justify;">19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p style="text-align: justify;">20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p style="text-align: justify;">21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p style="text-align: justify;">22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p style="text-align: justify;">23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p style="text-align: justify;">24. Order accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1990Cal262,94CWN1',
			'ratiodecidendi' => '',
			'respondent' => 'S.M. Nibedita Roy',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'paltu-dutta-vs-s-m-nibedita-roy',
	'args' => array(
		(int) 0 => '855494',
		(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
	)
)
$title_for_layout = 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '855494',
		'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
		'appealno' => 'C.O. No. 2048 of 1989',
		'appellant' => 'Paltu Dutta',
		'authreffered' => '',
		'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
		'citingcases' => '',
		'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
		'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1989-09-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Amulya Kumar Nandi, J.',
		'judgement' => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p>The Code of Civil Procedure (West Bengal</p><p>Amendment) Act, 1988</p><p>West Bengal Act XV of 1988</p><p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p>24. Order accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1990Cal262,94CWN1',
		'ratiodecidendi' => '',
		'respondent' => 'S.M. Nibedita Roy',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'paltu-dutta-vs-s-m-nibedita-roy'
$args = array(
	(int) 0 => '855494',
	(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
)
$url = 'https://sooperkanoon.com/case/amp/855494/paltu-dutta-vs-s-m-nibedita-roy'
$ctype = ' High Court'
$caseref = 'Hastings Mills Ltd. v. Hira Singh<br>'
$content = array(
	(int) 0 => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.',
	(int) 1 => '<p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.',
	(int) 2 => '<p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.',
	(int) 3 => '<p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,',
	(int) 4 => '<p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.',
	(int) 5 => '<p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.',
	(int) 6 => '<p>The Code of Civil Procedure (West Bengal',
	(int) 7 => '<p>Amendment) Act, 1988',
	(int) 8 => '<p>West Bengal Act XV of 1988',
	(int) 9 => '<p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.',
	(int) 10 => '<p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.',
	(int) 11 => '<p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.',
	(int) 12 => '<p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--',
	(int) 13 => '<p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-',
	(int) 14 => '<p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.',
	(int) 15 => '<p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.',
	(int) 16 => '<p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--',
	(int) 17 => '<p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.',
	(int) 18 => '<p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.',
	(int) 19 => '<p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.',
	(int) 20 => '<p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.',
	(int) 21 => '<p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' ',
	(int) 22 => '<p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .',
	(int) 23 => '<p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.',
	(int) 24 => '<p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.',
	(int) 25 => '<p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.',
	(int) 26 => '<p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.',
	(int) 27 => '<p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.',
	(int) 28 => '<p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.',
	(int) 29 => '<p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.',
	(int) 30 => '<p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.',
	(int) 31 => '<p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.',
	(int) 32 => '<p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.',
	(int) 33 => '<p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.',
	(int) 34 => '<p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.',
	(int) 35 => '<p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.',
	(int) 36 => '<p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.',
	(int) 37 => '<p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.',
	(int) 38 => '<p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.',
	(int) 39 => '<p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.',
	(int) 40 => '<p>24. Order accordingly.<p>',
	(int) 41 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 42
$i = (int) 7
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

Amendment) Act, 1988

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
Code Context
                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '855494',
			'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
			'appealno' => 'C.O. No. 2048 of 1989',
			'appellant' => 'Paltu Dutta',
			'authreffered' => '',
			'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
			'citingcases' => '',
			'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
			'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1989-09-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Amulya Kumar Nandi, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p style="text-align: justify;">2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p style="text-align: justify;">3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p style="text-align: justify;">4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p style="text-align: justify;">5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p style="text-align: justify;">6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p style="text-align: justify;">The Code of Civil Procedure (West Bengal</p><p style="text-align: justify;">Amendment) Act, 1988</p><p style="text-align: justify;">West Bengal Act XV of 1988</p><p style="text-align: justify;">Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p style="text-align: justify;">An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p style="text-align: justify;">Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p style="text-align: justify;">It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p style="text-align: justify;">1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p style="text-align: justify;"> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p style="text-align: justify;"> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p style="text-align: justify;"> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p style="text-align: justify;"> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p style="text-align: justify;"> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p style="text-align: justify;"> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p style="text-align: justify;"> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p style="text-align: justify;"> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p style="text-align: justify;">7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p style="text-align: justify;">8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p style="text-align: justify;">9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p style="text-align: justify;">10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p style="text-align: justify;">11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p style="text-align: justify;">12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p style="text-align: justify;">13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p style="text-align: justify;">14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p style="text-align: justify;">14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p style="text-align: justify;">15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p style="text-align: justify;">16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p style="text-align: justify;">17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p style="text-align: justify;">18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p style="text-align: justify;">19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p style="text-align: justify;">20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p style="text-align: justify;">21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p style="text-align: justify;">22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p style="text-align: justify;">23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p style="text-align: justify;">24. Order accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1990Cal262,94CWN1',
			'ratiodecidendi' => '',
			'respondent' => 'S.M. Nibedita Roy',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'paltu-dutta-vs-s-m-nibedita-roy',
	'args' => array(
		(int) 0 => '855494',
		(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
	)
)
$title_for_layout = 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '855494',
		'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
		'appealno' => 'C.O. No. 2048 of 1989',
		'appellant' => 'Paltu Dutta',
		'authreffered' => '',
		'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
		'citingcases' => '',
		'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
		'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1989-09-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Amulya Kumar Nandi, J.',
		'judgement' => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p>The Code of Civil Procedure (West Bengal</p><p>Amendment) Act, 1988</p><p>West Bengal Act XV of 1988</p><p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p>24. Order accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1990Cal262,94CWN1',
		'ratiodecidendi' => '',
		'respondent' => 'S.M. Nibedita Roy',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'paltu-dutta-vs-s-m-nibedita-roy'
$args = array(
	(int) 0 => '855494',
	(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
)
$url = 'https://sooperkanoon.com/case/amp/855494/paltu-dutta-vs-s-m-nibedita-roy'
$ctype = ' High Court'
$caseref = 'Hastings Mills Ltd. v. Hira Singh<br>'
$content = array(
	(int) 0 => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.',
	(int) 1 => '<p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.',
	(int) 2 => '<p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.',
	(int) 3 => '<p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,',
	(int) 4 => '<p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.',
	(int) 5 => '<p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.',
	(int) 6 => '<p>The Code of Civil Procedure (West Bengal',
	(int) 7 => '<p>Amendment) Act, 1988',
	(int) 8 => '<p>West Bengal Act XV of 1988',
	(int) 9 => '<p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.',
	(int) 10 => '<p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.',
	(int) 11 => '<p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.',
	(int) 12 => '<p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--',
	(int) 13 => '<p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-',
	(int) 14 => '<p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.',
	(int) 15 => '<p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.',
	(int) 16 => '<p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--',
	(int) 17 => '<p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.',
	(int) 18 => '<p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.',
	(int) 19 => '<p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.',
	(int) 20 => '<p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.',
	(int) 21 => '<p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' ',
	(int) 22 => '<p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .',
	(int) 23 => '<p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.',
	(int) 24 => '<p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.',
	(int) 25 => '<p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.',
	(int) 26 => '<p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.',
	(int) 27 => '<p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.',
	(int) 28 => '<p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.',
	(int) 29 => '<p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.',
	(int) 30 => '<p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.',
	(int) 31 => '<p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.',
	(int) 32 => '<p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.',
	(int) 33 => '<p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.',
	(int) 34 => '<p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.',
	(int) 35 => '<p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.',
	(int) 36 => '<p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.',
	(int) 37 => '<p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.',
	(int) 38 => '<p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.',
	(int) 39 => '<p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.',
	(int) 40 => '<p>24. Order accordingly.<p>',
	(int) 41 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 42
$i = (int) 8
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

West Bengal Act XV of 1988

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
Code Context
                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '855494',
			'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
			'appealno' => 'C.O. No. 2048 of 1989',
			'appellant' => 'Paltu Dutta',
			'authreffered' => '',
			'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
			'citingcases' => '',
			'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
			'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1989-09-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Amulya Kumar Nandi, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p style="text-align: justify;">2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p style="text-align: justify;">3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p style="text-align: justify;">4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p style="text-align: justify;">5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p style="text-align: justify;">6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p style="text-align: justify;">The Code of Civil Procedure (West Bengal</p><p style="text-align: justify;">Amendment) Act, 1988</p><p style="text-align: justify;">West Bengal Act XV of 1988</p><p style="text-align: justify;">Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p style="text-align: justify;">An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p style="text-align: justify;">Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p style="text-align: justify;">It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p style="text-align: justify;">1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p style="text-align: justify;"> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p style="text-align: justify;"> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p style="text-align: justify;"> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p style="text-align: justify;"> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p style="text-align: justify;"> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p style="text-align: justify;"> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p style="text-align: justify;"> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p style="text-align: justify;"> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p style="text-align: justify;">7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p style="text-align: justify;">8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p style="text-align: justify;">9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p style="text-align: justify;">10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p style="text-align: justify;">11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p style="text-align: justify;">12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p style="text-align: justify;">13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p style="text-align: justify;">14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p style="text-align: justify;">14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p style="text-align: justify;">15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p style="text-align: justify;">16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p style="text-align: justify;">17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p style="text-align: justify;">18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p style="text-align: justify;">19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p style="text-align: justify;">20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p style="text-align: justify;">21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p style="text-align: justify;">22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p style="text-align: justify;">23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p style="text-align: justify;">24. Order accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1990Cal262,94CWN1',
			'ratiodecidendi' => '',
			'respondent' => 'S.M. Nibedita Roy',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'paltu-dutta-vs-s-m-nibedita-roy',
	'args' => array(
		(int) 0 => '855494',
		(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
	)
)
$title_for_layout = 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '855494',
		'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
		'appealno' => 'C.O. No. 2048 of 1989',
		'appellant' => 'Paltu Dutta',
		'authreffered' => '',
		'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
		'citingcases' => '',
		'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
		'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1989-09-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Amulya Kumar Nandi, J.',
		'judgement' => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p>The Code of Civil Procedure (West Bengal</p><p>Amendment) Act, 1988</p><p>West Bengal Act XV of 1988</p><p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p>24. Order accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1990Cal262,94CWN1',
		'ratiodecidendi' => '',
		'respondent' => 'S.M. Nibedita Roy',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'paltu-dutta-vs-s-m-nibedita-roy'
$args = array(
	(int) 0 => '855494',
	(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
)
$url = 'https://sooperkanoon.com/case/amp/855494/paltu-dutta-vs-s-m-nibedita-roy'
$ctype = ' High Court'
$caseref = 'Hastings Mills Ltd. v. Hira Singh<br>'
$content = array(
	(int) 0 => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.',
	(int) 1 => '<p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.',
	(int) 2 => '<p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.',
	(int) 3 => '<p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,',
	(int) 4 => '<p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.',
	(int) 5 => '<p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.',
	(int) 6 => '<p>The Code of Civil Procedure (West Bengal',
	(int) 7 => '<p>Amendment) Act, 1988',
	(int) 8 => '<p>West Bengal Act XV of 1988',
	(int) 9 => '<p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.',
	(int) 10 => '<p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.',
	(int) 11 => '<p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.',
	(int) 12 => '<p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--',
	(int) 13 => '<p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-',
	(int) 14 => '<p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.',
	(int) 15 => '<p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.',
	(int) 16 => '<p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--',
	(int) 17 => '<p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.',
	(int) 18 => '<p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.',
	(int) 19 => '<p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.',
	(int) 20 => '<p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.',
	(int) 21 => '<p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' ',
	(int) 22 => '<p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .',
	(int) 23 => '<p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.',
	(int) 24 => '<p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.',
	(int) 25 => '<p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.',
	(int) 26 => '<p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.',
	(int) 27 => '<p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.',
	(int) 28 => '<p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.',
	(int) 29 => '<p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.',
	(int) 30 => '<p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.',
	(int) 31 => '<p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.',
	(int) 32 => '<p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.',
	(int) 33 => '<p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.',
	(int) 34 => '<p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.',
	(int) 35 => '<p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.',
	(int) 36 => '<p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.',
	(int) 37 => '<p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.',
	(int) 38 => '<p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.',
	(int) 39 => '<p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.',
	(int) 40 => '<p>24. Order accordingly.<p>',
	(int) 41 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 42
$i = (int) 9
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
Code Context
                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '855494',
			'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
			'appealno' => 'C.O. No. 2048 of 1989',
			'appellant' => 'Paltu Dutta',
			'authreffered' => '',
			'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
			'citingcases' => '',
			'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
			'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1989-09-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Amulya Kumar Nandi, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p style="text-align: justify;">2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p style="text-align: justify;">3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p style="text-align: justify;">4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p style="text-align: justify;">5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p style="text-align: justify;">6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p style="text-align: justify;">The Code of Civil Procedure (West Bengal</p><p style="text-align: justify;">Amendment) Act, 1988</p><p style="text-align: justify;">West Bengal Act XV of 1988</p><p style="text-align: justify;">Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p style="text-align: justify;">An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p style="text-align: justify;">Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p style="text-align: justify;">It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p style="text-align: justify;">1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p style="text-align: justify;"> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p style="text-align: justify;"> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p style="text-align: justify;"> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p style="text-align: justify;"> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p style="text-align: justify;"> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p style="text-align: justify;"> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p style="text-align: justify;"> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p style="text-align: justify;"> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p style="text-align: justify;">7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p style="text-align: justify;">8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p style="text-align: justify;">9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p style="text-align: justify;">10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p style="text-align: justify;">11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p style="text-align: justify;">12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p style="text-align: justify;">13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p style="text-align: justify;">14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p style="text-align: justify;">14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p style="text-align: justify;">15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p style="text-align: justify;">16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p style="text-align: justify;">17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p style="text-align: justify;">18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p style="text-align: justify;">19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p style="text-align: justify;">20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p style="text-align: justify;">21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p style="text-align: justify;">22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p style="text-align: justify;">23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p style="text-align: justify;">24. Order accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1990Cal262,94CWN1',
			'ratiodecidendi' => '',
			'respondent' => 'S.M. Nibedita Roy',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'paltu-dutta-vs-s-m-nibedita-roy',
	'args' => array(
		(int) 0 => '855494',
		(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
	)
)
$title_for_layout = 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '855494',
		'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
		'appealno' => 'C.O. No. 2048 of 1989',
		'appellant' => 'Paltu Dutta',
		'authreffered' => '',
		'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
		'citingcases' => '',
		'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
		'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1989-09-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Amulya Kumar Nandi, J.',
		'judgement' => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p>The Code of Civil Procedure (West Bengal</p><p>Amendment) Act, 1988</p><p>West Bengal Act XV of 1988</p><p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p>24. Order accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1990Cal262,94CWN1',
		'ratiodecidendi' => '',
		'respondent' => 'S.M. Nibedita Roy',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'paltu-dutta-vs-s-m-nibedita-roy'
$args = array(
	(int) 0 => '855494',
	(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
)
$url = 'https://sooperkanoon.com/case/amp/855494/paltu-dutta-vs-s-m-nibedita-roy'
$ctype = ' High Court'
$caseref = 'Hastings Mills Ltd. v. Hira Singh<br>'
$content = array(
	(int) 0 => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.',
	(int) 1 => '<p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.',
	(int) 2 => '<p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.',
	(int) 3 => '<p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,',
	(int) 4 => '<p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.',
	(int) 5 => '<p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.',
	(int) 6 => '<p>The Code of Civil Procedure (West Bengal',
	(int) 7 => '<p>Amendment) Act, 1988',
	(int) 8 => '<p>West Bengal Act XV of 1988',
	(int) 9 => '<p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.',
	(int) 10 => '<p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.',
	(int) 11 => '<p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.',
	(int) 12 => '<p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--',
	(int) 13 => '<p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-',
	(int) 14 => '<p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.',
	(int) 15 => '<p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.',
	(int) 16 => '<p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--',
	(int) 17 => '<p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.',
	(int) 18 => '<p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.',
	(int) 19 => '<p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.',
	(int) 20 => '<p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.',
	(int) 21 => '<p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' ',
	(int) 22 => '<p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .',
	(int) 23 => '<p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.',
	(int) 24 => '<p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.',
	(int) 25 => '<p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.',
	(int) 26 => '<p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.',
	(int) 27 => '<p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.',
	(int) 28 => '<p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.',
	(int) 29 => '<p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.',
	(int) 30 => '<p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.',
	(int) 31 => '<p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.',
	(int) 32 => '<p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.',
	(int) 33 => '<p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.',
	(int) 34 => '<p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.',
	(int) 35 => '<p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.',
	(int) 36 => '<p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.',
	(int) 37 => '<p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.',
	(int) 38 => '<p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.',
	(int) 39 => '<p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.',
	(int) 40 => '<p>24. Order accordingly.<p>',
	(int) 41 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 42
$i = (int) 10
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
Code Context
                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '855494',
			'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
			'appealno' => 'C.O. No. 2048 of 1989',
			'appellant' => 'Paltu Dutta',
			'authreffered' => '',
			'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
			'citingcases' => '',
			'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
			'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1989-09-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Amulya Kumar Nandi, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p style="text-align: justify;">2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p style="text-align: justify;">3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p style="text-align: justify;">4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p style="text-align: justify;">5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p style="text-align: justify;">6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p style="text-align: justify;">The Code of Civil Procedure (West Bengal</p><p style="text-align: justify;">Amendment) Act, 1988</p><p style="text-align: justify;">West Bengal Act XV of 1988</p><p style="text-align: justify;">Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p style="text-align: justify;">An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p style="text-align: justify;">Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p style="text-align: justify;">It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p style="text-align: justify;">1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p style="text-align: justify;"> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p style="text-align: justify;"> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p style="text-align: justify;"> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p style="text-align: justify;"> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p style="text-align: justify;"> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p style="text-align: justify;"> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p style="text-align: justify;"> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p style="text-align: justify;"> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p style="text-align: justify;">7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p style="text-align: justify;">8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p style="text-align: justify;">9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p style="text-align: justify;">10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p style="text-align: justify;">11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p style="text-align: justify;">12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p style="text-align: justify;">13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p style="text-align: justify;">14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p style="text-align: justify;">14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p style="text-align: justify;">15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p style="text-align: justify;">16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p style="text-align: justify;">17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p style="text-align: justify;">18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p style="text-align: justify;">19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p style="text-align: justify;">20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p style="text-align: justify;">21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p style="text-align: justify;">22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p style="text-align: justify;">23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p style="text-align: justify;">24. Order accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1990Cal262,94CWN1',
			'ratiodecidendi' => '',
			'respondent' => 'S.M. Nibedita Roy',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'paltu-dutta-vs-s-m-nibedita-roy',
	'args' => array(
		(int) 0 => '855494',
		(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
	)
)
$title_for_layout = 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '855494',
		'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
		'appealno' => 'C.O. No. 2048 of 1989',
		'appellant' => 'Paltu Dutta',
		'authreffered' => '',
		'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
		'citingcases' => '',
		'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
		'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1989-09-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Amulya Kumar Nandi, J.',
		'judgement' => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p>The Code of Civil Procedure (West Bengal</p><p>Amendment) Act, 1988</p><p>West Bengal Act XV of 1988</p><p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p>24. Order accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1990Cal262,94CWN1',
		'ratiodecidendi' => '',
		'respondent' => 'S.M. Nibedita Roy',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'paltu-dutta-vs-s-m-nibedita-roy'
$args = array(
	(int) 0 => '855494',
	(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
)
$url = 'https://sooperkanoon.com/case/amp/855494/paltu-dutta-vs-s-m-nibedita-roy'
$ctype = ' High Court'
$caseref = 'Hastings Mills Ltd. v. Hira Singh<br>'
$content = array(
	(int) 0 => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.',
	(int) 1 => '<p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.',
	(int) 2 => '<p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.',
	(int) 3 => '<p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,',
	(int) 4 => '<p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.',
	(int) 5 => '<p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.',
	(int) 6 => '<p>The Code of Civil Procedure (West Bengal',
	(int) 7 => '<p>Amendment) Act, 1988',
	(int) 8 => '<p>West Bengal Act XV of 1988',
	(int) 9 => '<p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.',
	(int) 10 => '<p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.',
	(int) 11 => '<p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.',
	(int) 12 => '<p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--',
	(int) 13 => '<p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-',
	(int) 14 => '<p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.',
	(int) 15 => '<p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.',
	(int) 16 => '<p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--',
	(int) 17 => '<p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.',
	(int) 18 => '<p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.',
	(int) 19 => '<p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.',
	(int) 20 => '<p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.',
	(int) 21 => '<p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' ',
	(int) 22 => '<p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .',
	(int) 23 => '<p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.',
	(int) 24 => '<p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.',
	(int) 25 => '<p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.',
	(int) 26 => '<p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.',
	(int) 27 => '<p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.',
	(int) 28 => '<p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.',
	(int) 29 => '<p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.',
	(int) 30 => '<p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.',
	(int) 31 => '<p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.',
	(int) 32 => '<p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.',
	(int) 33 => '<p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.',
	(int) 34 => '<p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.',
	(int) 35 => '<p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.',
	(int) 36 => '<p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.',
	(int) 37 => '<p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.',
	(int) 38 => '<p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.',
	(int) 39 => '<p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.',
	(int) 40 => '<p>24. Order accordingly.<p>',
	(int) 41 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 42
$i = (int) 11
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
Code Context
                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '855494',
			'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
			'appealno' => 'C.O. No. 2048 of 1989',
			'appellant' => 'Paltu Dutta',
			'authreffered' => '',
			'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
			'citingcases' => '',
			'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
			'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1989-09-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Amulya Kumar Nandi, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p style="text-align: justify;">2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p style="text-align: justify;">3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p style="text-align: justify;">4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p style="text-align: justify;">5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p style="text-align: justify;">6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p style="text-align: justify;">The Code of Civil Procedure (West Bengal</p><p style="text-align: justify;">Amendment) Act, 1988</p><p style="text-align: justify;">West Bengal Act XV of 1988</p><p style="text-align: justify;">Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p style="text-align: justify;">An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p style="text-align: justify;">Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p style="text-align: justify;">It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p style="text-align: justify;">1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p style="text-align: justify;"> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p style="text-align: justify;"> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p style="text-align: justify;"> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p style="text-align: justify;"> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p style="text-align: justify;"> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p style="text-align: justify;"> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p style="text-align: justify;"> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p style="text-align: justify;"> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p style="text-align: justify;">7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p style="text-align: justify;">8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p style="text-align: justify;">9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p style="text-align: justify;">10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p style="text-align: justify;">11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p style="text-align: justify;">12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p style="text-align: justify;">13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p style="text-align: justify;">14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p style="text-align: justify;">14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p style="text-align: justify;">15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p style="text-align: justify;">16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p style="text-align: justify;">17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p style="text-align: justify;">18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p style="text-align: justify;">19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p style="text-align: justify;">20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p style="text-align: justify;">21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p style="text-align: justify;">22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p style="text-align: justify;">23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p style="text-align: justify;">24. Order accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1990Cal262,94CWN1',
			'ratiodecidendi' => '',
			'respondent' => 'S.M. Nibedita Roy',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'paltu-dutta-vs-s-m-nibedita-roy',
	'args' => array(
		(int) 0 => '855494',
		(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
	)
)
$title_for_layout = 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '855494',
		'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
		'appealno' => 'C.O. No. 2048 of 1989',
		'appellant' => 'Paltu Dutta',
		'authreffered' => '',
		'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
		'citingcases' => '',
		'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
		'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1989-09-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Amulya Kumar Nandi, J.',
		'judgement' => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p>The Code of Civil Procedure (West Bengal</p><p>Amendment) Act, 1988</p><p>West Bengal Act XV of 1988</p><p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p>24. Order accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1990Cal262,94CWN1',
		'ratiodecidendi' => '',
		'respondent' => 'S.M. Nibedita Roy',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'paltu-dutta-vs-s-m-nibedita-roy'
$args = array(
	(int) 0 => '855494',
	(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
)
$url = 'https://sooperkanoon.com/case/amp/855494/paltu-dutta-vs-s-m-nibedita-roy'
$ctype = ' High Court'
$caseref = 'Hastings Mills Ltd. v. Hira Singh<br>'
$content = array(
	(int) 0 => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.',
	(int) 1 => '<p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.',
	(int) 2 => '<p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.',
	(int) 3 => '<p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,',
	(int) 4 => '<p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.',
	(int) 5 => '<p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.',
	(int) 6 => '<p>The Code of Civil Procedure (West Bengal',
	(int) 7 => '<p>Amendment) Act, 1988',
	(int) 8 => '<p>West Bengal Act XV of 1988',
	(int) 9 => '<p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.',
	(int) 10 => '<p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.',
	(int) 11 => '<p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.',
	(int) 12 => '<p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--',
	(int) 13 => '<p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-',
	(int) 14 => '<p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.',
	(int) 15 => '<p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.',
	(int) 16 => '<p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--',
	(int) 17 => '<p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.',
	(int) 18 => '<p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.',
	(int) 19 => '<p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.',
	(int) 20 => '<p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.',
	(int) 21 => '<p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' ',
	(int) 22 => '<p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .',
	(int) 23 => '<p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.',
	(int) 24 => '<p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.',
	(int) 25 => '<p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.',
	(int) 26 => '<p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.',
	(int) 27 => '<p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.',
	(int) 28 => '<p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.',
	(int) 29 => '<p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.',
	(int) 30 => '<p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.',
	(int) 31 => '<p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.',
	(int) 32 => '<p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.',
	(int) 33 => '<p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.',
	(int) 34 => '<p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.',
	(int) 35 => '<p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.',
	(int) 36 => '<p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.',
	(int) 37 => '<p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.',
	(int) 38 => '<p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.',
	(int) 39 => '<p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.',
	(int) 40 => '<p>24. Order accordingly.<p>',
	(int) 41 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 42
$i = (int) 12
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
Code Context
                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '855494',
			'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
			'appealno' => 'C.O. No. 2048 of 1989',
			'appellant' => 'Paltu Dutta',
			'authreffered' => '',
			'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
			'citingcases' => '',
			'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
			'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1989-09-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Amulya Kumar Nandi, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p style="text-align: justify;">2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p style="text-align: justify;">3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p style="text-align: justify;">4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p style="text-align: justify;">5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p style="text-align: justify;">6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p style="text-align: justify;">The Code of Civil Procedure (West Bengal</p><p style="text-align: justify;">Amendment) Act, 1988</p><p style="text-align: justify;">West Bengal Act XV of 1988</p><p style="text-align: justify;">Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p style="text-align: justify;">An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p style="text-align: justify;">Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p style="text-align: justify;">It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p style="text-align: justify;">1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p style="text-align: justify;"> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p style="text-align: justify;"> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p style="text-align: justify;"> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p style="text-align: justify;"> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p style="text-align: justify;"> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p style="text-align: justify;"> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p style="text-align: justify;"> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p style="text-align: justify;"> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p style="text-align: justify;">7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p style="text-align: justify;">8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p style="text-align: justify;">9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p style="text-align: justify;">10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p style="text-align: justify;">11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p style="text-align: justify;">12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p style="text-align: justify;">13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p style="text-align: justify;">14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p style="text-align: justify;">14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p style="text-align: justify;">15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p style="text-align: justify;">16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p style="text-align: justify;">17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p style="text-align: justify;">18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p style="text-align: justify;">19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p style="text-align: justify;">20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p style="text-align: justify;">21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p style="text-align: justify;">22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p style="text-align: justify;">23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p style="text-align: justify;">24. Order accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1990Cal262,94CWN1',
			'ratiodecidendi' => '',
			'respondent' => 'S.M. Nibedita Roy',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'paltu-dutta-vs-s-m-nibedita-roy',
	'args' => array(
		(int) 0 => '855494',
		(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
	)
)
$title_for_layout = 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '855494',
		'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
		'appealno' => 'C.O. No. 2048 of 1989',
		'appellant' => 'Paltu Dutta',
		'authreffered' => '',
		'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
		'citingcases' => '',
		'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
		'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1989-09-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Amulya Kumar Nandi, J.',
		'judgement' => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p>The Code of Civil Procedure (West Bengal</p><p>Amendment) Act, 1988</p><p>West Bengal Act XV of 1988</p><p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p>24. Order accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1990Cal262,94CWN1',
		'ratiodecidendi' => '',
		'respondent' => 'S.M. Nibedita Roy',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'paltu-dutta-vs-s-m-nibedita-roy'
$args = array(
	(int) 0 => '855494',
	(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
)
$url = 'https://sooperkanoon.com/case/amp/855494/paltu-dutta-vs-s-m-nibedita-roy'
$ctype = ' High Court'
$caseref = 'Hastings Mills Ltd. v. Hira Singh<br>'
$content = array(
	(int) 0 => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.',
	(int) 1 => '<p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.',
	(int) 2 => '<p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.',
	(int) 3 => '<p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,',
	(int) 4 => '<p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.',
	(int) 5 => '<p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.',
	(int) 6 => '<p>The Code of Civil Procedure (West Bengal',
	(int) 7 => '<p>Amendment) Act, 1988',
	(int) 8 => '<p>West Bengal Act XV of 1988',
	(int) 9 => '<p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.',
	(int) 10 => '<p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.',
	(int) 11 => '<p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.',
	(int) 12 => '<p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--',
	(int) 13 => '<p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-',
	(int) 14 => '<p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.',
	(int) 15 => '<p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.',
	(int) 16 => '<p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--',
	(int) 17 => '<p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.',
	(int) 18 => '<p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.',
	(int) 19 => '<p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.',
	(int) 20 => '<p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.',
	(int) 21 => '<p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' ',
	(int) 22 => '<p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .',
	(int) 23 => '<p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.',
	(int) 24 => '<p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.',
	(int) 25 => '<p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.',
	(int) 26 => '<p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.',
	(int) 27 => '<p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.',
	(int) 28 => '<p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.',
	(int) 29 => '<p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.',
	(int) 30 => '<p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.',
	(int) 31 => '<p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.',
	(int) 32 => '<p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.',
	(int) 33 => '<p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.',
	(int) 34 => '<p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.',
	(int) 35 => '<p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.',
	(int) 36 => '<p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.',
	(int) 37 => '<p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.',
	(int) 38 => '<p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.',
	(int) 39 => '<p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.',
	(int) 40 => '<p>24. Order accordingly.<p>',
	(int) 41 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 42
$i = (int) 13
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
Code Context
                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '855494',
			'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
			'appealno' => 'C.O. No. 2048 of 1989',
			'appellant' => 'Paltu Dutta',
			'authreffered' => '',
			'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
			'citingcases' => '',
			'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
			'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1989-09-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Amulya Kumar Nandi, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p style="text-align: justify;">2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p style="text-align: justify;">3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p style="text-align: justify;">4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p style="text-align: justify;">5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p style="text-align: justify;">6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p style="text-align: justify;">The Code of Civil Procedure (West Bengal</p><p style="text-align: justify;">Amendment) Act, 1988</p><p style="text-align: justify;">West Bengal Act XV of 1988</p><p style="text-align: justify;">Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p style="text-align: justify;">An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p style="text-align: justify;">Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p style="text-align: justify;">It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p style="text-align: justify;">1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p style="text-align: justify;"> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p style="text-align: justify;"> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p style="text-align: justify;"> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p style="text-align: justify;"> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p style="text-align: justify;"> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p style="text-align: justify;"> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p style="text-align: justify;"> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p style="text-align: justify;"> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p style="text-align: justify;">7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p style="text-align: justify;">8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p style="text-align: justify;">9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p style="text-align: justify;">10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p style="text-align: justify;">11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p style="text-align: justify;">12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p style="text-align: justify;">13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p style="text-align: justify;">14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p style="text-align: justify;">14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p style="text-align: justify;">15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p style="text-align: justify;">16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p style="text-align: justify;">17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p style="text-align: justify;">18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p style="text-align: justify;">19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p style="text-align: justify;">20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p style="text-align: justify;">21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p style="text-align: justify;">22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p style="text-align: justify;">23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p style="text-align: justify;">24. Order accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1990Cal262,94CWN1',
			'ratiodecidendi' => '',
			'respondent' => 'S.M. Nibedita Roy',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'paltu-dutta-vs-s-m-nibedita-roy',
	'args' => array(
		(int) 0 => '855494',
		(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
	)
)
$title_for_layout = 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '855494',
		'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
		'appealno' => 'C.O. No. 2048 of 1989',
		'appellant' => 'Paltu Dutta',
		'authreffered' => '',
		'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
		'citingcases' => '',
		'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
		'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1989-09-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Amulya Kumar Nandi, J.',
		'judgement' => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p>The Code of Civil Procedure (West Bengal</p><p>Amendment) Act, 1988</p><p>West Bengal Act XV of 1988</p><p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p>24. Order accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1990Cal262,94CWN1',
		'ratiodecidendi' => '',
		'respondent' => 'S.M. Nibedita Roy',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'paltu-dutta-vs-s-m-nibedita-roy'
$args = array(
	(int) 0 => '855494',
	(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
)
$url = 'https://sooperkanoon.com/case/amp/855494/paltu-dutta-vs-s-m-nibedita-roy'
$ctype = ' High Court'
$caseref = 'Hastings Mills Ltd. v. Hira Singh<br>'
$content = array(
	(int) 0 => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.',
	(int) 1 => '<p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.',
	(int) 2 => '<p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.',
	(int) 3 => '<p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,',
	(int) 4 => '<p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.',
	(int) 5 => '<p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.',
	(int) 6 => '<p>The Code of Civil Procedure (West Bengal',
	(int) 7 => '<p>Amendment) Act, 1988',
	(int) 8 => '<p>West Bengal Act XV of 1988',
	(int) 9 => '<p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.',
	(int) 10 => '<p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.',
	(int) 11 => '<p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.',
	(int) 12 => '<p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--',
	(int) 13 => '<p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-',
	(int) 14 => '<p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.',
	(int) 15 => '<p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.',
	(int) 16 => '<p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--',
	(int) 17 => '<p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.',
	(int) 18 => '<p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.',
	(int) 19 => '<p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.',
	(int) 20 => '<p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.',
	(int) 21 => '<p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' ',
	(int) 22 => '<p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .',
	(int) 23 => '<p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.',
	(int) 24 => '<p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.',
	(int) 25 => '<p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.',
	(int) 26 => '<p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.',
	(int) 27 => '<p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.',
	(int) 28 => '<p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.',
	(int) 29 => '<p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.',
	(int) 30 => '<p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.',
	(int) 31 => '<p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.',
	(int) 32 => '<p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.',
	(int) 33 => '<p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.',
	(int) 34 => '<p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.',
	(int) 35 => '<p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.',
	(int) 36 => '<p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.',
	(int) 37 => '<p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.',
	(int) 38 => '<p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.',
	(int) 39 => '<p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.',
	(int) 40 => '<p>24. Order accordingly.<p>',
	(int) 41 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 42
$i = (int) 14
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

(2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
Code Context
                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '855494',
			'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
			'appealno' => 'C.O. No. 2048 of 1989',
			'appellant' => 'Paltu Dutta',
			'authreffered' => '',
			'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
			'citingcases' => '',
			'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
			'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1989-09-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Amulya Kumar Nandi, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p style="text-align: justify;">2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p style="text-align: justify;">3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p style="text-align: justify;">4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p style="text-align: justify;">5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p style="text-align: justify;">6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p style="text-align: justify;">The Code of Civil Procedure (West Bengal</p><p style="text-align: justify;">Amendment) Act, 1988</p><p style="text-align: justify;">West Bengal Act XV of 1988</p><p style="text-align: justify;">Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p style="text-align: justify;">An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p style="text-align: justify;">Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p style="text-align: justify;">It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p style="text-align: justify;">1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p style="text-align: justify;"> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p style="text-align: justify;"> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p style="text-align: justify;"> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p style="text-align: justify;"> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p style="text-align: justify;"> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p style="text-align: justify;"> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p style="text-align: justify;"> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p style="text-align: justify;"> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p style="text-align: justify;">7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p style="text-align: justify;">8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p style="text-align: justify;">9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p style="text-align: justify;">10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p style="text-align: justify;">11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p style="text-align: justify;">12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p style="text-align: justify;">13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p style="text-align: justify;">14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p style="text-align: justify;">14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p style="text-align: justify;">15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p style="text-align: justify;">16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p style="text-align: justify;">17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p style="text-align: justify;">18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p style="text-align: justify;">19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p style="text-align: justify;">20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p style="text-align: justify;">21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p style="text-align: justify;">22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p style="text-align: justify;">23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p style="text-align: justify;">24. Order accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1990Cal262,94CWN1',
			'ratiodecidendi' => '',
			'respondent' => 'S.M. Nibedita Roy',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'paltu-dutta-vs-s-m-nibedita-roy',
	'args' => array(
		(int) 0 => '855494',
		(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
	)
)
$title_for_layout = 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '855494',
		'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
		'appealno' => 'C.O. No. 2048 of 1989',
		'appellant' => 'Paltu Dutta',
		'authreffered' => '',
		'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
		'citingcases' => '',
		'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
		'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1989-09-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Amulya Kumar Nandi, J.',
		'judgement' => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p>The Code of Civil Procedure (West Bengal</p><p>Amendment) Act, 1988</p><p>West Bengal Act XV of 1988</p><p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p>24. Order accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1990Cal262,94CWN1',
		'ratiodecidendi' => '',
		'respondent' => 'S.M. Nibedita Roy',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'paltu-dutta-vs-s-m-nibedita-roy'
$args = array(
	(int) 0 => '855494',
	(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
)
$url = 'https://sooperkanoon.com/case/amp/855494/paltu-dutta-vs-s-m-nibedita-roy'
$ctype = ' High Court'
$caseref = 'Hastings Mills Ltd. v. Hira Singh<br>'
$content = array(
	(int) 0 => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.',
	(int) 1 => '<p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.',
	(int) 2 => '<p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.',
	(int) 3 => '<p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,',
	(int) 4 => '<p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.',
	(int) 5 => '<p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.',
	(int) 6 => '<p>The Code of Civil Procedure (West Bengal',
	(int) 7 => '<p>Amendment) Act, 1988',
	(int) 8 => '<p>West Bengal Act XV of 1988',
	(int) 9 => '<p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.',
	(int) 10 => '<p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.',
	(int) 11 => '<p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.',
	(int) 12 => '<p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--',
	(int) 13 => '<p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-',
	(int) 14 => '<p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.',
	(int) 15 => '<p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.',
	(int) 16 => '<p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--',
	(int) 17 => '<p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.',
	(int) 18 => '<p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.',
	(int) 19 => '<p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.',
	(int) 20 => '<p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.',
	(int) 21 => '<p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' ',
	(int) 22 => '<p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .',
	(int) 23 => '<p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.',
	(int) 24 => '<p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.',
	(int) 25 => '<p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.',
	(int) 26 => '<p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.',
	(int) 27 => '<p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.',
	(int) 28 => '<p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.',
	(int) 29 => '<p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.',
	(int) 30 => '<p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.',
	(int) 31 => '<p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.',
	(int) 32 => '<p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.',
	(int) 33 => '<p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.',
	(int) 34 => '<p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.',
	(int) 35 => '<p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.',
	(int) 36 => '<p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.',
	(int) 37 => '<p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.',
	(int) 38 => '<p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.',
	(int) 39 => '<p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.',
	(int) 40 => '<p>24. Order accordingly.<p>',
	(int) 41 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 42
$i = (int) 15
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
Code Context
                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '855494',
			'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
			'appealno' => 'C.O. No. 2048 of 1989',
			'appellant' => 'Paltu Dutta',
			'authreffered' => '',
			'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
			'citingcases' => '',
			'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
			'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1989-09-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Amulya Kumar Nandi, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p style="text-align: justify;">2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p style="text-align: justify;">3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p style="text-align: justify;">4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p style="text-align: justify;">5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p style="text-align: justify;">6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p style="text-align: justify;">The Code of Civil Procedure (West Bengal</p><p style="text-align: justify;">Amendment) Act, 1988</p><p style="text-align: justify;">West Bengal Act XV of 1988</p><p style="text-align: justify;">Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p style="text-align: justify;">An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p style="text-align: justify;">Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p style="text-align: justify;">It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p style="text-align: justify;">1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p style="text-align: justify;"> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p style="text-align: justify;"> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p style="text-align: justify;"> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p style="text-align: justify;"> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p style="text-align: justify;"> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p style="text-align: justify;"> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p style="text-align: justify;"> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p style="text-align: justify;"> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p style="text-align: justify;">7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p style="text-align: justify;">8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p style="text-align: justify;">9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p style="text-align: justify;">10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p style="text-align: justify;">11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p style="text-align: justify;">12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p style="text-align: justify;">13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p style="text-align: justify;">14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p style="text-align: justify;">14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p style="text-align: justify;">15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p style="text-align: justify;">16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p style="text-align: justify;">17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p style="text-align: justify;">18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p style="text-align: justify;">19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p style="text-align: justify;">20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p style="text-align: justify;">21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p style="text-align: justify;">22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p style="text-align: justify;">23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p style="text-align: justify;">24. Order accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1990Cal262,94CWN1',
			'ratiodecidendi' => '',
			'respondent' => 'S.M. Nibedita Roy',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'paltu-dutta-vs-s-m-nibedita-roy',
	'args' => array(
		(int) 0 => '855494',
		(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
	)
)
$title_for_layout = 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '855494',
		'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
		'appealno' => 'C.O. No. 2048 of 1989',
		'appellant' => 'Paltu Dutta',
		'authreffered' => '',
		'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
		'citingcases' => '',
		'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
		'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1989-09-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Amulya Kumar Nandi, J.',
		'judgement' => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p>The Code of Civil Procedure (West Bengal</p><p>Amendment) Act, 1988</p><p>West Bengal Act XV of 1988</p><p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p>24. Order accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1990Cal262,94CWN1',
		'ratiodecidendi' => '',
		'respondent' => 'S.M. Nibedita Roy',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'paltu-dutta-vs-s-m-nibedita-roy'
$args = array(
	(int) 0 => '855494',
	(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
)
$url = 'https://sooperkanoon.com/case/amp/855494/paltu-dutta-vs-s-m-nibedita-roy'
$ctype = ' High Court'
$caseref = 'Hastings Mills Ltd. v. Hira Singh<br>'
$content = array(
	(int) 0 => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.',
	(int) 1 => '<p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.',
	(int) 2 => '<p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.',
	(int) 3 => '<p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,',
	(int) 4 => '<p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.',
	(int) 5 => '<p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.',
	(int) 6 => '<p>The Code of Civil Procedure (West Bengal',
	(int) 7 => '<p>Amendment) Act, 1988',
	(int) 8 => '<p>West Bengal Act XV of 1988',
	(int) 9 => '<p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.',
	(int) 10 => '<p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.',
	(int) 11 => '<p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.',
	(int) 12 => '<p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--',
	(int) 13 => '<p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-',
	(int) 14 => '<p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.',
	(int) 15 => '<p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.',
	(int) 16 => '<p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--',
	(int) 17 => '<p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.',
	(int) 18 => '<p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.',
	(int) 19 => '<p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.',
	(int) 20 => '<p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.',
	(int) 21 => '<p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' ',
	(int) 22 => '<p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .',
	(int) 23 => '<p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.',
	(int) 24 => '<p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.',
	(int) 25 => '<p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.',
	(int) 26 => '<p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.',
	(int) 27 => '<p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.',
	(int) 28 => '<p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.',
	(int) 29 => '<p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.',
	(int) 30 => '<p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.',
	(int) 31 => '<p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.',
	(int) 32 => '<p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.',
	(int) 33 => '<p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.',
	(int) 34 => '<p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.',
	(int) 35 => '<p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.',
	(int) 36 => '<p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.',
	(int) 37 => '<p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.',
	(int) 38 => '<p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.',
	(int) 39 => '<p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.',
	(int) 40 => '<p>24. Order accordingly.<p>',
	(int) 41 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 42
$i = (int) 16
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
Code Context
                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '855494',
			'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
			'appealno' => 'C.O. No. 2048 of 1989',
			'appellant' => 'Paltu Dutta',
			'authreffered' => '',
			'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
			'citingcases' => '',
			'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
			'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1989-09-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Amulya Kumar Nandi, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p style="text-align: justify;">2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p style="text-align: justify;">3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p style="text-align: justify;">4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p style="text-align: justify;">5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p style="text-align: justify;">6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p style="text-align: justify;">The Code of Civil Procedure (West Bengal</p><p style="text-align: justify;">Amendment) Act, 1988</p><p style="text-align: justify;">West Bengal Act XV of 1988</p><p style="text-align: justify;">Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p style="text-align: justify;">An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p style="text-align: justify;">Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p style="text-align: justify;">It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p style="text-align: justify;">1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p style="text-align: justify;"> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p style="text-align: justify;"> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p style="text-align: justify;"> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p style="text-align: justify;"> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p style="text-align: justify;"> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p style="text-align: justify;"> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p style="text-align: justify;"> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p style="text-align: justify;"> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p style="text-align: justify;">7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p style="text-align: justify;">8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p style="text-align: justify;">9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p style="text-align: justify;">10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p style="text-align: justify;">11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p style="text-align: justify;">12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p style="text-align: justify;">13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p style="text-align: justify;">14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p style="text-align: justify;">14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p style="text-align: justify;">15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p style="text-align: justify;">16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p style="text-align: justify;">17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p style="text-align: justify;">18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p style="text-align: justify;">19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p style="text-align: justify;">20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p style="text-align: justify;">21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p style="text-align: justify;">22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p style="text-align: justify;">23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p style="text-align: justify;">24. Order accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1990Cal262,94CWN1',
			'ratiodecidendi' => '',
			'respondent' => 'S.M. Nibedita Roy',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'paltu-dutta-vs-s-m-nibedita-roy',
	'args' => array(
		(int) 0 => '855494',
		(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
	)
)
$title_for_layout = 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '855494',
		'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
		'appealno' => 'C.O. No. 2048 of 1989',
		'appellant' => 'Paltu Dutta',
		'authreffered' => '',
		'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
		'citingcases' => '',
		'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
		'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1989-09-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Amulya Kumar Nandi, J.',
		'judgement' => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p>The Code of Civil Procedure (West Bengal</p><p>Amendment) Act, 1988</p><p>West Bengal Act XV of 1988</p><p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p>24. Order accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1990Cal262,94CWN1',
		'ratiodecidendi' => '',
		'respondent' => 'S.M. Nibedita Roy',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'paltu-dutta-vs-s-m-nibedita-roy'
$args = array(
	(int) 0 => '855494',
	(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
)
$url = 'https://sooperkanoon.com/case/amp/855494/paltu-dutta-vs-s-m-nibedita-roy'
$ctype = ' High Court'
$caseref = 'Hastings Mills Ltd. v. Hira Singh<br>'
$content = array(
	(int) 0 => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.',
	(int) 1 => '<p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.',
	(int) 2 => '<p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.',
	(int) 3 => '<p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,',
	(int) 4 => '<p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.',
	(int) 5 => '<p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.',
	(int) 6 => '<p>The Code of Civil Procedure (West Bengal',
	(int) 7 => '<p>Amendment) Act, 1988',
	(int) 8 => '<p>West Bengal Act XV of 1988',
	(int) 9 => '<p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.',
	(int) 10 => '<p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.',
	(int) 11 => '<p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.',
	(int) 12 => '<p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--',
	(int) 13 => '<p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-',
	(int) 14 => '<p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.',
	(int) 15 => '<p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.',
	(int) 16 => '<p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--',
	(int) 17 => '<p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.',
	(int) 18 => '<p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.',
	(int) 19 => '<p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.',
	(int) 20 => '<p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.',
	(int) 21 => '<p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' ',
	(int) 22 => '<p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .',
	(int) 23 => '<p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.',
	(int) 24 => '<p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.',
	(int) 25 => '<p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.',
	(int) 26 => '<p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.',
	(int) 27 => '<p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.',
	(int) 28 => '<p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.',
	(int) 29 => '<p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.',
	(int) 30 => '<p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.',
	(int) 31 => '<p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.',
	(int) 32 => '<p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.',
	(int) 33 => '<p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.',
	(int) 34 => '<p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.',
	(int) 35 => '<p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.',
	(int) 36 => '<p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.',
	(int) 37 => '<p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.',
	(int) 38 => '<p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.',
	(int) 39 => '<p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.',
	(int) 40 => '<p>24. Order accordingly.<p>',
	(int) 41 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 42
$i = (int) 17
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
Code Context
                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '855494',
			'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
			'appealno' => 'C.O. No. 2048 of 1989',
			'appellant' => 'Paltu Dutta',
			'authreffered' => '',
			'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
			'citingcases' => '',
			'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
			'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1989-09-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Amulya Kumar Nandi, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p style="text-align: justify;">2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p style="text-align: justify;">3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p style="text-align: justify;">4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p style="text-align: justify;">5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p style="text-align: justify;">6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p style="text-align: justify;">The Code of Civil Procedure (West Bengal</p><p style="text-align: justify;">Amendment) Act, 1988</p><p style="text-align: justify;">West Bengal Act XV of 1988</p><p style="text-align: justify;">Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p style="text-align: justify;">An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p style="text-align: justify;">Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p style="text-align: justify;">It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p style="text-align: justify;">1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p style="text-align: justify;"> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p style="text-align: justify;"> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p style="text-align: justify;"> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p style="text-align: justify;"> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p style="text-align: justify;"> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p style="text-align: justify;"> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p style="text-align: justify;"> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p style="text-align: justify;"> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p style="text-align: justify;">7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p style="text-align: justify;">8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p style="text-align: justify;">9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p style="text-align: justify;">10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p style="text-align: justify;">11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p style="text-align: justify;">12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p style="text-align: justify;">13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p style="text-align: justify;">14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p style="text-align: justify;">14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p style="text-align: justify;">15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p style="text-align: justify;">16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p style="text-align: justify;">17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p style="text-align: justify;">18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p style="text-align: justify;">19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p style="text-align: justify;">20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p style="text-align: justify;">21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p style="text-align: justify;">22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p style="text-align: justify;">23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p style="text-align: justify;">24. Order accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1990Cal262,94CWN1',
			'ratiodecidendi' => '',
			'respondent' => 'S.M. Nibedita Roy',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'paltu-dutta-vs-s-m-nibedita-roy',
	'args' => array(
		(int) 0 => '855494',
		(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
	)
)
$title_for_layout = 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '855494',
		'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
		'appealno' => 'C.O. No. 2048 of 1989',
		'appellant' => 'Paltu Dutta',
		'authreffered' => '',
		'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
		'citingcases' => '',
		'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
		'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1989-09-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Amulya Kumar Nandi, J.',
		'judgement' => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p>The Code of Civil Procedure (West Bengal</p><p>Amendment) Act, 1988</p><p>West Bengal Act XV of 1988</p><p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p>24. Order accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1990Cal262,94CWN1',
		'ratiodecidendi' => '',
		'respondent' => 'S.M. Nibedita Roy',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'paltu-dutta-vs-s-m-nibedita-roy'
$args = array(
	(int) 0 => '855494',
	(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
)
$url = 'https://sooperkanoon.com/case/amp/855494/paltu-dutta-vs-s-m-nibedita-roy'
$ctype = ' High Court'
$caseref = 'Hastings Mills Ltd. v. Hira Singh<br>'
$content = array(
	(int) 0 => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.',
	(int) 1 => '<p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.',
	(int) 2 => '<p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.',
	(int) 3 => '<p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,',
	(int) 4 => '<p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.',
	(int) 5 => '<p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.',
	(int) 6 => '<p>The Code of Civil Procedure (West Bengal',
	(int) 7 => '<p>Amendment) Act, 1988',
	(int) 8 => '<p>West Bengal Act XV of 1988',
	(int) 9 => '<p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.',
	(int) 10 => '<p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.',
	(int) 11 => '<p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.',
	(int) 12 => '<p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--',
	(int) 13 => '<p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-',
	(int) 14 => '<p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.',
	(int) 15 => '<p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.',
	(int) 16 => '<p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--',
	(int) 17 => '<p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.',
	(int) 18 => '<p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.',
	(int) 19 => '<p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.',
	(int) 20 => '<p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.',
	(int) 21 => '<p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' ',
	(int) 22 => '<p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .',
	(int) 23 => '<p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.',
	(int) 24 => '<p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.',
	(int) 25 => '<p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.',
	(int) 26 => '<p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.',
	(int) 27 => '<p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.',
	(int) 28 => '<p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.',
	(int) 29 => '<p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.',
	(int) 30 => '<p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.',
	(int) 31 => '<p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.',
	(int) 32 => '<p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.',
	(int) 33 => '<p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.',
	(int) 34 => '<p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.',
	(int) 35 => '<p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.',
	(int) 36 => '<p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.',
	(int) 37 => '<p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.',
	(int) 38 => '<p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.',
	(int) 39 => '<p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.',
	(int) 40 => '<p>24. Order accordingly.<p>',
	(int) 41 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 42
$i = (int) 18
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

(2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
Code Context
                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '855494',
			'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
			'appealno' => 'C.O. No. 2048 of 1989',
			'appellant' => 'Paltu Dutta',
			'authreffered' => '',
			'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
			'citingcases' => '',
			'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
			'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1989-09-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Amulya Kumar Nandi, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p style="text-align: justify;">2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p style="text-align: justify;">3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p style="text-align: justify;">4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p style="text-align: justify;">5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p style="text-align: justify;">6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p style="text-align: justify;">The Code of Civil Procedure (West Bengal</p><p style="text-align: justify;">Amendment) Act, 1988</p><p style="text-align: justify;">West Bengal Act XV of 1988</p><p style="text-align: justify;">Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p style="text-align: justify;">An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p style="text-align: justify;">Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p style="text-align: justify;">It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p style="text-align: justify;">1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p style="text-align: justify;"> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p style="text-align: justify;"> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p style="text-align: justify;"> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p style="text-align: justify;"> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p style="text-align: justify;"> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p style="text-align: justify;"> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p style="text-align: justify;"> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p style="text-align: justify;"> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p style="text-align: justify;">7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p style="text-align: justify;">8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p style="text-align: justify;">9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p style="text-align: justify;">10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p style="text-align: justify;">11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p style="text-align: justify;">12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p style="text-align: justify;">13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p style="text-align: justify;">14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p style="text-align: justify;">14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p style="text-align: justify;">15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p style="text-align: justify;">16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p style="text-align: justify;">17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p style="text-align: justify;">18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p style="text-align: justify;">19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p style="text-align: justify;">20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p style="text-align: justify;">21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p style="text-align: justify;">22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p style="text-align: justify;">23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p style="text-align: justify;">24. Order accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1990Cal262,94CWN1',
			'ratiodecidendi' => '',
			'respondent' => 'S.M. Nibedita Roy',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'paltu-dutta-vs-s-m-nibedita-roy',
	'args' => array(
		(int) 0 => '855494',
		(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
	)
)
$title_for_layout = 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '855494',
		'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
		'appealno' => 'C.O. No. 2048 of 1989',
		'appellant' => 'Paltu Dutta',
		'authreffered' => '',
		'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
		'citingcases' => '',
		'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
		'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1989-09-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Amulya Kumar Nandi, J.',
		'judgement' => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p>The Code of Civil Procedure (West Bengal</p><p>Amendment) Act, 1988</p><p>West Bengal Act XV of 1988</p><p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p>24. Order accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1990Cal262,94CWN1',
		'ratiodecidendi' => '',
		'respondent' => 'S.M. Nibedita Roy',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'paltu-dutta-vs-s-m-nibedita-roy'
$args = array(
	(int) 0 => '855494',
	(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
)
$url = 'https://sooperkanoon.com/case/amp/855494/paltu-dutta-vs-s-m-nibedita-roy'
$ctype = ' High Court'
$caseref = 'Hastings Mills Ltd. v. Hira Singh<br>'
$content = array(
	(int) 0 => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.',
	(int) 1 => '<p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.',
	(int) 2 => '<p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.',
	(int) 3 => '<p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,',
	(int) 4 => '<p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.',
	(int) 5 => '<p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.',
	(int) 6 => '<p>The Code of Civil Procedure (West Bengal',
	(int) 7 => '<p>Amendment) Act, 1988',
	(int) 8 => '<p>West Bengal Act XV of 1988',
	(int) 9 => '<p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.',
	(int) 10 => '<p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.',
	(int) 11 => '<p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.',
	(int) 12 => '<p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--',
	(int) 13 => '<p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-',
	(int) 14 => '<p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.',
	(int) 15 => '<p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.',
	(int) 16 => '<p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--',
	(int) 17 => '<p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.',
	(int) 18 => '<p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.',
	(int) 19 => '<p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.',
	(int) 20 => '<p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.',
	(int) 21 => '<p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' ',
	(int) 22 => '<p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .',
	(int) 23 => '<p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.',
	(int) 24 => '<p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.',
	(int) 25 => '<p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.',
	(int) 26 => '<p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.',
	(int) 27 => '<p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.',
	(int) 28 => '<p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.',
	(int) 29 => '<p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.',
	(int) 30 => '<p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.',
	(int) 31 => '<p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.',
	(int) 32 => '<p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.',
	(int) 33 => '<p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.',
	(int) 34 => '<p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.',
	(int) 35 => '<p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.',
	(int) 36 => '<p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.',
	(int) 37 => '<p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.',
	(int) 38 => '<p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.',
	(int) 39 => '<p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.',
	(int) 40 => '<p>24. Order accordingly.<p>',
	(int) 41 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 42
$i = (int) 19
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

(3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
Code Context
                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '855494',
			'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
			'appealno' => 'C.O. No. 2048 of 1989',
			'appellant' => 'Paltu Dutta',
			'authreffered' => '',
			'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
			'citingcases' => '',
			'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
			'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1989-09-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Amulya Kumar Nandi, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p style="text-align: justify;">2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p style="text-align: justify;">3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p style="text-align: justify;">4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p style="text-align: justify;">5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p style="text-align: justify;">6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p style="text-align: justify;">The Code of Civil Procedure (West Bengal</p><p style="text-align: justify;">Amendment) Act, 1988</p><p style="text-align: justify;">West Bengal Act XV of 1988</p><p style="text-align: justify;">Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p style="text-align: justify;">An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p style="text-align: justify;">Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p style="text-align: justify;">It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p style="text-align: justify;">1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p style="text-align: justify;"> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p style="text-align: justify;"> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p style="text-align: justify;"> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p style="text-align: justify;"> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p style="text-align: justify;"> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p style="text-align: justify;"> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p style="text-align: justify;"> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p style="text-align: justify;"> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p style="text-align: justify;">7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p style="text-align: justify;">8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p style="text-align: justify;">9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p style="text-align: justify;">10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p style="text-align: justify;">11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p style="text-align: justify;">12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p style="text-align: justify;">13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p style="text-align: justify;">14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p style="text-align: justify;">14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p style="text-align: justify;">15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p style="text-align: justify;">16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p style="text-align: justify;">17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p style="text-align: justify;">18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p style="text-align: justify;">19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p style="text-align: justify;">20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p style="text-align: justify;">21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p style="text-align: justify;">22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p style="text-align: justify;">23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p style="text-align: justify;">24. Order accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1990Cal262,94CWN1',
			'ratiodecidendi' => '',
			'respondent' => 'S.M. Nibedita Roy',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'paltu-dutta-vs-s-m-nibedita-roy',
	'args' => array(
		(int) 0 => '855494',
		(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
	)
)
$title_for_layout = 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '855494',
		'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
		'appealno' => 'C.O. No. 2048 of 1989',
		'appellant' => 'Paltu Dutta',
		'authreffered' => '',
		'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
		'citingcases' => '',
		'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
		'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1989-09-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Amulya Kumar Nandi, J.',
		'judgement' => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p>The Code of Civil Procedure (West Bengal</p><p>Amendment) Act, 1988</p><p>West Bengal Act XV of 1988</p><p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p>24. Order accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1990Cal262,94CWN1',
		'ratiodecidendi' => '',
		'respondent' => 'S.M. Nibedita Roy',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'paltu-dutta-vs-s-m-nibedita-roy'
$args = array(
	(int) 0 => '855494',
	(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
)
$url = 'https://sooperkanoon.com/case/amp/855494/paltu-dutta-vs-s-m-nibedita-roy'
$ctype = ' High Court'
$caseref = 'Hastings Mills Ltd. v. Hira Singh<br>'
$content = array(
	(int) 0 => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.',
	(int) 1 => '<p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.',
	(int) 2 => '<p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.',
	(int) 3 => '<p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,',
	(int) 4 => '<p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.',
	(int) 5 => '<p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.',
	(int) 6 => '<p>The Code of Civil Procedure (West Bengal',
	(int) 7 => '<p>Amendment) Act, 1988',
	(int) 8 => '<p>West Bengal Act XV of 1988',
	(int) 9 => '<p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.',
	(int) 10 => '<p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.',
	(int) 11 => '<p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.',
	(int) 12 => '<p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--',
	(int) 13 => '<p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-',
	(int) 14 => '<p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.',
	(int) 15 => '<p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.',
	(int) 16 => '<p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--',
	(int) 17 => '<p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.',
	(int) 18 => '<p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.',
	(int) 19 => '<p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.',
	(int) 20 => '<p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.',
	(int) 21 => '<p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' ',
	(int) 22 => '<p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .',
	(int) 23 => '<p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.',
	(int) 24 => '<p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.',
	(int) 25 => '<p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.',
	(int) 26 => '<p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.',
	(int) 27 => '<p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.',
	(int) 28 => '<p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.',
	(int) 29 => '<p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.',
	(int) 30 => '<p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.',
	(int) 31 => '<p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.',
	(int) 32 => '<p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.',
	(int) 33 => '<p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.',
	(int) 34 => '<p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.',
	(int) 35 => '<p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.',
	(int) 36 => '<p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.',
	(int) 37 => '<p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.',
	(int) 38 => '<p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.',
	(int) 39 => '<p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.',
	(int) 40 => '<p>24. Order accordingly.<p>',
	(int) 41 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 42
$i = (int) 20
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

(4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
Code Context
                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '855494',
			'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
			'appealno' => 'C.O. No. 2048 of 1989',
			'appellant' => 'Paltu Dutta',
			'authreffered' => '',
			'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
			'citingcases' => '',
			'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
			'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1989-09-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Amulya Kumar Nandi, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p style="text-align: justify;">2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p style="text-align: justify;">3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p style="text-align: justify;">4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p style="text-align: justify;">5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p style="text-align: justify;">6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p style="text-align: justify;">The Code of Civil Procedure (West Bengal</p><p style="text-align: justify;">Amendment) Act, 1988</p><p style="text-align: justify;">West Bengal Act XV of 1988</p><p style="text-align: justify;">Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p style="text-align: justify;">An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p style="text-align: justify;">Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p style="text-align: justify;">It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p style="text-align: justify;">1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p style="text-align: justify;"> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p style="text-align: justify;"> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p style="text-align: justify;"> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p style="text-align: justify;"> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p style="text-align: justify;"> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p style="text-align: justify;"> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p style="text-align: justify;"> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p style="text-align: justify;"> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p style="text-align: justify;">7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p style="text-align: justify;">8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p style="text-align: justify;">9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p style="text-align: justify;">10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p style="text-align: justify;">11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p style="text-align: justify;">12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p style="text-align: justify;">13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p style="text-align: justify;">14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p style="text-align: justify;">14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p style="text-align: justify;">15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p style="text-align: justify;">16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p style="text-align: justify;">17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p style="text-align: justify;">18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p style="text-align: justify;">19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p style="text-align: justify;">20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p style="text-align: justify;">21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p style="text-align: justify;">22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p style="text-align: justify;">23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p style="text-align: justify;">24. Order accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1990Cal262,94CWN1',
			'ratiodecidendi' => '',
			'respondent' => 'S.M. Nibedita Roy',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'paltu-dutta-vs-s-m-nibedita-roy',
	'args' => array(
		(int) 0 => '855494',
		(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
	)
)
$title_for_layout = 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '855494',
		'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
		'appealno' => 'C.O. No. 2048 of 1989',
		'appellant' => 'Paltu Dutta',
		'authreffered' => '',
		'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
		'citingcases' => '',
		'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
		'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1989-09-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Amulya Kumar Nandi, J.',
		'judgement' => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p>The Code of Civil Procedure (West Bengal</p><p>Amendment) Act, 1988</p><p>West Bengal Act XV of 1988</p><p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p>24. Order accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1990Cal262,94CWN1',
		'ratiodecidendi' => '',
		'respondent' => 'S.M. Nibedita Roy',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'paltu-dutta-vs-s-m-nibedita-roy'
$args = array(
	(int) 0 => '855494',
	(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
)
$url = 'https://sooperkanoon.com/case/amp/855494/paltu-dutta-vs-s-m-nibedita-roy'
$ctype = ' High Court'
$caseref = 'Hastings Mills Ltd. v. Hira Singh<br>'
$content = array(
	(int) 0 => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.',
	(int) 1 => '<p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.',
	(int) 2 => '<p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.',
	(int) 3 => '<p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,',
	(int) 4 => '<p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.',
	(int) 5 => '<p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.',
	(int) 6 => '<p>The Code of Civil Procedure (West Bengal',
	(int) 7 => '<p>Amendment) Act, 1988',
	(int) 8 => '<p>West Bengal Act XV of 1988',
	(int) 9 => '<p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.',
	(int) 10 => '<p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.',
	(int) 11 => '<p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.',
	(int) 12 => '<p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--',
	(int) 13 => '<p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-',
	(int) 14 => '<p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.',
	(int) 15 => '<p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.',
	(int) 16 => '<p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--',
	(int) 17 => '<p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.',
	(int) 18 => '<p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.',
	(int) 19 => '<p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.',
	(int) 20 => '<p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.',
	(int) 21 => '<p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' ',
	(int) 22 => '<p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .',
	(int) 23 => '<p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.',
	(int) 24 => '<p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.',
	(int) 25 => '<p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.',
	(int) 26 => '<p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.',
	(int) 27 => '<p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.',
	(int) 28 => '<p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.',
	(int) 29 => '<p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.',
	(int) 30 => '<p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.',
	(int) 31 => '<p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.',
	(int) 32 => '<p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.',
	(int) 33 => '<p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.',
	(int) 34 => '<p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.',
	(int) 35 => '<p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.',
	(int) 36 => '<p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.',
	(int) 37 => '<p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.',
	(int) 38 => '<p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.',
	(int) 39 => '<p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.',
	(int) 40 => '<p>24. Order accordingly.<p>',
	(int) 41 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 42
$i = (int) 21
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

(5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.'

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
Code Context
                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '855494',
			'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
			'appealno' => 'C.O. No. 2048 of 1989',
			'appellant' => 'Paltu Dutta',
			'authreffered' => '',
			'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
			'citingcases' => '',
			'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
			'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1989-09-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Amulya Kumar Nandi, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p style="text-align: justify;">2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p style="text-align: justify;">3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p style="text-align: justify;">4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p style="text-align: justify;">5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p style="text-align: justify;">6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p style="text-align: justify;">The Code of Civil Procedure (West Bengal</p><p style="text-align: justify;">Amendment) Act, 1988</p><p style="text-align: justify;">West Bengal Act XV of 1988</p><p style="text-align: justify;">Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p style="text-align: justify;">An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p style="text-align: justify;">Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p style="text-align: justify;">It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p style="text-align: justify;">1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p style="text-align: justify;"> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p style="text-align: justify;"> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p style="text-align: justify;"> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p style="text-align: justify;"> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p style="text-align: justify;"> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p style="text-align: justify;"> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p style="text-align: justify;"> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p style="text-align: justify;"> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p style="text-align: justify;">7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p style="text-align: justify;">8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p style="text-align: justify;">9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p style="text-align: justify;">10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p style="text-align: justify;">11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p style="text-align: justify;">12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p style="text-align: justify;">13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p style="text-align: justify;">14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p style="text-align: justify;">14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p style="text-align: justify;">15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p style="text-align: justify;">16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p style="text-align: justify;">17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p style="text-align: justify;">18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p style="text-align: justify;">19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p style="text-align: justify;">20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p style="text-align: justify;">21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p style="text-align: justify;">22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p style="text-align: justify;">23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p style="text-align: justify;">24. Order accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1990Cal262,94CWN1',
			'ratiodecidendi' => '',
			'respondent' => 'S.M. Nibedita Roy',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'paltu-dutta-vs-s-m-nibedita-roy',
	'args' => array(
		(int) 0 => '855494',
		(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
	)
)
$title_for_layout = 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '855494',
		'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
		'appealno' => 'C.O. No. 2048 of 1989',
		'appellant' => 'Paltu Dutta',
		'authreffered' => '',
		'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
		'citingcases' => '',
		'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
		'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1989-09-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Amulya Kumar Nandi, J.',
		'judgement' => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p>The Code of Civil Procedure (West Bengal</p><p>Amendment) Act, 1988</p><p>West Bengal Act XV of 1988</p><p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p>24. Order accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1990Cal262,94CWN1',
		'ratiodecidendi' => '',
		'respondent' => 'S.M. Nibedita Roy',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'paltu-dutta-vs-s-m-nibedita-roy'
$args = array(
	(int) 0 => '855494',
	(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
)
$url = 'https://sooperkanoon.com/case/amp/855494/paltu-dutta-vs-s-m-nibedita-roy'
$ctype = ' High Court'
$caseref = 'Hastings Mills Ltd. v. Hira Singh<br>'
$content = array(
	(int) 0 => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.',
	(int) 1 => '<p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.',
	(int) 2 => '<p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.',
	(int) 3 => '<p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,',
	(int) 4 => '<p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.',
	(int) 5 => '<p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.',
	(int) 6 => '<p>The Code of Civil Procedure (West Bengal',
	(int) 7 => '<p>Amendment) Act, 1988',
	(int) 8 => '<p>West Bengal Act XV of 1988',
	(int) 9 => '<p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.',
	(int) 10 => '<p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.',
	(int) 11 => '<p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.',
	(int) 12 => '<p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--',
	(int) 13 => '<p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-',
	(int) 14 => '<p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.',
	(int) 15 => '<p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.',
	(int) 16 => '<p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--',
	(int) 17 => '<p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.',
	(int) 18 => '<p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.',
	(int) 19 => '<p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.',
	(int) 20 => '<p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.',
	(int) 21 => '<p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' ',
	(int) 22 => '<p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .',
	(int) 23 => '<p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.',
	(int) 24 => '<p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.',
	(int) 25 => '<p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.',
	(int) 26 => '<p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.',
	(int) 27 => '<p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.',
	(int) 28 => '<p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.',
	(int) 29 => '<p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.',
	(int) 30 => '<p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.',
	(int) 31 => '<p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.',
	(int) 32 => '<p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.',
	(int) 33 => '<p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.',
	(int) 34 => '<p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.',
	(int) 35 => '<p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.',
	(int) 36 => '<p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.',
	(int) 37 => '<p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.',
	(int) 38 => '<p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.',
	(int) 39 => '<p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.',
	(int) 40 => '<p>24. Order accordingly.<p>',
	(int) 41 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 42
$i = (int) 22
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
Code Context
                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '855494',
			'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
			'appealno' => 'C.O. No. 2048 of 1989',
			'appellant' => 'Paltu Dutta',
			'authreffered' => '',
			'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
			'citingcases' => '',
			'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
			'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1989-09-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Amulya Kumar Nandi, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p style="text-align: justify;">2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p style="text-align: justify;">3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p style="text-align: justify;">4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p style="text-align: justify;">5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p style="text-align: justify;">6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p style="text-align: justify;">The Code of Civil Procedure (West Bengal</p><p style="text-align: justify;">Amendment) Act, 1988</p><p style="text-align: justify;">West Bengal Act XV of 1988</p><p style="text-align: justify;">Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p style="text-align: justify;">An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p style="text-align: justify;">Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p style="text-align: justify;">It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p style="text-align: justify;">1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p style="text-align: justify;"> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p style="text-align: justify;"> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p style="text-align: justify;"> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p style="text-align: justify;"> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p style="text-align: justify;"> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p style="text-align: justify;"> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p style="text-align: justify;"> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p style="text-align: justify;"> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p style="text-align: justify;">7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p style="text-align: justify;">8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p style="text-align: justify;">9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p style="text-align: justify;">10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p style="text-align: justify;">11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p style="text-align: justify;">12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p style="text-align: justify;">13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p style="text-align: justify;">14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p style="text-align: justify;">14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p style="text-align: justify;">15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p style="text-align: justify;">16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p style="text-align: justify;">17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p style="text-align: justify;">18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p style="text-align: justify;">19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p style="text-align: justify;">20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p style="text-align: justify;">21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p style="text-align: justify;">22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p style="text-align: justify;">23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p style="text-align: justify;">24. Order accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1990Cal262,94CWN1',
			'ratiodecidendi' => '',
			'respondent' => 'S.M. Nibedita Roy',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'paltu-dutta-vs-s-m-nibedita-roy',
	'args' => array(
		(int) 0 => '855494',
		(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
	)
)
$title_for_layout = 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '855494',
		'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
		'appealno' => 'C.O. No. 2048 of 1989',
		'appellant' => 'Paltu Dutta',
		'authreffered' => '',
		'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
		'citingcases' => '',
		'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
		'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1989-09-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Amulya Kumar Nandi, J.',
		'judgement' => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p>The Code of Civil Procedure (West Bengal</p><p>Amendment) Act, 1988</p><p>West Bengal Act XV of 1988</p><p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p>24. Order accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1990Cal262,94CWN1',
		'ratiodecidendi' => '',
		'respondent' => 'S.M. Nibedita Roy',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'paltu-dutta-vs-s-m-nibedita-roy'
$args = array(
	(int) 0 => '855494',
	(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
)
$url = 'https://sooperkanoon.com/case/amp/855494/paltu-dutta-vs-s-m-nibedita-roy'
$ctype = ' High Court'
$caseref = 'Hastings Mills Ltd. v. Hira Singh<br>'
$content = array(
	(int) 0 => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.',
	(int) 1 => '<p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.',
	(int) 2 => '<p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.',
	(int) 3 => '<p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,',
	(int) 4 => '<p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.',
	(int) 5 => '<p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.',
	(int) 6 => '<p>The Code of Civil Procedure (West Bengal',
	(int) 7 => '<p>Amendment) Act, 1988',
	(int) 8 => '<p>West Bengal Act XV of 1988',
	(int) 9 => '<p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.',
	(int) 10 => '<p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.',
	(int) 11 => '<p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.',
	(int) 12 => '<p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--',
	(int) 13 => '<p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-',
	(int) 14 => '<p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.',
	(int) 15 => '<p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.',
	(int) 16 => '<p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--',
	(int) 17 => '<p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.',
	(int) 18 => '<p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.',
	(int) 19 => '<p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.',
	(int) 20 => '<p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.',
	(int) 21 => '<p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' ',
	(int) 22 => '<p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .',
	(int) 23 => '<p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.',
	(int) 24 => '<p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.',
	(int) 25 => '<p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.',
	(int) 26 => '<p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.',
	(int) 27 => '<p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.',
	(int) 28 => '<p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.',
	(int) 29 => '<p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.',
	(int) 30 => '<p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.',
	(int) 31 => '<p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.',
	(int) 32 => '<p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.',
	(int) 33 => '<p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.',
	(int) 34 => '<p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.',
	(int) 35 => '<p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.',
	(int) 36 => '<p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.',
	(int) 37 => '<p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.',
	(int) 38 => '<p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.',
	(int) 39 => '<p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.',
	(int) 40 => '<p>24. Order accordingly.<p>',
	(int) 41 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 42
$i = (int) 23
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
Code Context
                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '855494',
			'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
			'appealno' => 'C.O. No. 2048 of 1989',
			'appellant' => 'Paltu Dutta',
			'authreffered' => '',
			'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
			'citingcases' => '',
			'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
			'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1989-09-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Amulya Kumar Nandi, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p style="text-align: justify;">2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p style="text-align: justify;">3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p style="text-align: justify;">4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p style="text-align: justify;">5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p style="text-align: justify;">6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p style="text-align: justify;">The Code of Civil Procedure (West Bengal</p><p style="text-align: justify;">Amendment) Act, 1988</p><p style="text-align: justify;">West Bengal Act XV of 1988</p><p style="text-align: justify;">Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p style="text-align: justify;">An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p style="text-align: justify;">Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p style="text-align: justify;">It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p style="text-align: justify;">1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p style="text-align: justify;"> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p style="text-align: justify;"> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p style="text-align: justify;"> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p style="text-align: justify;"> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p style="text-align: justify;"> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p style="text-align: justify;"> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p style="text-align: justify;"> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p style="text-align: justify;"> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p style="text-align: justify;">7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p style="text-align: justify;">8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p style="text-align: justify;">9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p style="text-align: justify;">10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p style="text-align: justify;">11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p style="text-align: justify;">12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p style="text-align: justify;">13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p style="text-align: justify;">14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p style="text-align: justify;">14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p style="text-align: justify;">15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p style="text-align: justify;">16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p style="text-align: justify;">17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p style="text-align: justify;">18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p style="text-align: justify;">19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p style="text-align: justify;">20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p style="text-align: justify;">21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p style="text-align: justify;">22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p style="text-align: justify;">23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p style="text-align: justify;">24. Order accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1990Cal262,94CWN1',
			'ratiodecidendi' => '',
			'respondent' => 'S.M. Nibedita Roy',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'paltu-dutta-vs-s-m-nibedita-roy',
	'args' => array(
		(int) 0 => '855494',
		(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
	)
)
$title_for_layout = 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '855494',
		'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
		'appealno' => 'C.O. No. 2048 of 1989',
		'appellant' => 'Paltu Dutta',
		'authreffered' => '',
		'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
		'citingcases' => '',
		'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
		'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1989-09-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Amulya Kumar Nandi, J.',
		'judgement' => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p>The Code of Civil Procedure (West Bengal</p><p>Amendment) Act, 1988</p><p>West Bengal Act XV of 1988</p><p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p>24. Order accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1990Cal262,94CWN1',
		'ratiodecidendi' => '',
		'respondent' => 'S.M. Nibedita Roy',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'paltu-dutta-vs-s-m-nibedita-roy'
$args = array(
	(int) 0 => '855494',
	(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
)
$url = 'https://sooperkanoon.com/case/amp/855494/paltu-dutta-vs-s-m-nibedita-roy'
$ctype = ' High Court'
$caseref = 'Hastings Mills Ltd. v. Hira Singh<br>'
$content = array(
	(int) 0 => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.',
	(int) 1 => '<p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.',
	(int) 2 => '<p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.',
	(int) 3 => '<p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,',
	(int) 4 => '<p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.',
	(int) 5 => '<p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.',
	(int) 6 => '<p>The Code of Civil Procedure (West Bengal',
	(int) 7 => '<p>Amendment) Act, 1988',
	(int) 8 => '<p>West Bengal Act XV of 1988',
	(int) 9 => '<p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.',
	(int) 10 => '<p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.',
	(int) 11 => '<p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.',
	(int) 12 => '<p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--',
	(int) 13 => '<p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-',
	(int) 14 => '<p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.',
	(int) 15 => '<p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.',
	(int) 16 => '<p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--',
	(int) 17 => '<p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.',
	(int) 18 => '<p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.',
	(int) 19 => '<p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.',
	(int) 20 => '<p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.',
	(int) 21 => '<p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' ',
	(int) 22 => '<p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .',
	(int) 23 => '<p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.',
	(int) 24 => '<p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.',
	(int) 25 => '<p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.',
	(int) 26 => '<p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.',
	(int) 27 => '<p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.',
	(int) 28 => '<p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.',
	(int) 29 => '<p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.',
	(int) 30 => '<p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.',
	(int) 31 => '<p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.',
	(int) 32 => '<p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.',
	(int) 33 => '<p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.',
	(int) 34 => '<p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.',
	(int) 35 => '<p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.',
	(int) 36 => '<p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.',
	(int) 37 => '<p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.',
	(int) 38 => '<p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.',
	(int) 39 => '<p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.',
	(int) 40 => '<p>24. Order accordingly.<p>',
	(int) 41 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 42
$i = (int) 24
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
Code Context
                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '855494',
			'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
			'appealno' => 'C.O. No. 2048 of 1989',
			'appellant' => 'Paltu Dutta',
			'authreffered' => '',
			'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
			'citingcases' => '',
			'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
			'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1989-09-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Amulya Kumar Nandi, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p style="text-align: justify;">2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p style="text-align: justify;">3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p style="text-align: justify;">4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p style="text-align: justify;">5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p style="text-align: justify;">6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p style="text-align: justify;">The Code of Civil Procedure (West Bengal</p><p style="text-align: justify;">Amendment) Act, 1988</p><p style="text-align: justify;">West Bengal Act XV of 1988</p><p style="text-align: justify;">Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p style="text-align: justify;">An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p style="text-align: justify;">Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p style="text-align: justify;">It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p style="text-align: justify;">1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p style="text-align: justify;"> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p style="text-align: justify;"> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p style="text-align: justify;"> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p style="text-align: justify;"> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p style="text-align: justify;"> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p style="text-align: justify;"> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p style="text-align: justify;"> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p style="text-align: justify;"> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p style="text-align: justify;">7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p style="text-align: justify;">8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p style="text-align: justify;">9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p style="text-align: justify;">10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p style="text-align: justify;">11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p style="text-align: justify;">12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p style="text-align: justify;">13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p style="text-align: justify;">14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p style="text-align: justify;">14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p style="text-align: justify;">15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p style="text-align: justify;">16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p style="text-align: justify;">17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p style="text-align: justify;">18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p style="text-align: justify;">19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p style="text-align: justify;">20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p style="text-align: justify;">21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p style="text-align: justify;">22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p style="text-align: justify;">23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p style="text-align: justify;">24. Order accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1990Cal262,94CWN1',
			'ratiodecidendi' => '',
			'respondent' => 'S.M. Nibedita Roy',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'paltu-dutta-vs-s-m-nibedita-roy',
	'args' => array(
		(int) 0 => '855494',
		(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
	)
)
$title_for_layout = 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '855494',
		'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
		'appealno' => 'C.O. No. 2048 of 1989',
		'appellant' => 'Paltu Dutta',
		'authreffered' => '',
		'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
		'citingcases' => '',
		'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
		'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1989-09-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Amulya Kumar Nandi, J.',
		'judgement' => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p>The Code of Civil Procedure (West Bengal</p><p>Amendment) Act, 1988</p><p>West Bengal Act XV of 1988</p><p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p>24. Order accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1990Cal262,94CWN1',
		'ratiodecidendi' => '',
		'respondent' => 'S.M. Nibedita Roy',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'paltu-dutta-vs-s-m-nibedita-roy'
$args = array(
	(int) 0 => '855494',
	(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
)
$url = 'https://sooperkanoon.com/case/amp/855494/paltu-dutta-vs-s-m-nibedita-roy'
$ctype = ' High Court'
$caseref = 'Hastings Mills Ltd. v. Hira Singh<br>'
$content = array(
	(int) 0 => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.',
	(int) 1 => '<p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.',
	(int) 2 => '<p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.',
	(int) 3 => '<p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,',
	(int) 4 => '<p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.',
	(int) 5 => '<p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.',
	(int) 6 => '<p>The Code of Civil Procedure (West Bengal',
	(int) 7 => '<p>Amendment) Act, 1988',
	(int) 8 => '<p>West Bengal Act XV of 1988',
	(int) 9 => '<p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.',
	(int) 10 => '<p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.',
	(int) 11 => '<p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.',
	(int) 12 => '<p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--',
	(int) 13 => '<p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-',
	(int) 14 => '<p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.',
	(int) 15 => '<p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.',
	(int) 16 => '<p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--',
	(int) 17 => '<p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.',
	(int) 18 => '<p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.',
	(int) 19 => '<p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.',
	(int) 20 => '<p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.',
	(int) 21 => '<p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' ',
	(int) 22 => '<p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .',
	(int) 23 => '<p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.',
	(int) 24 => '<p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.',
	(int) 25 => '<p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.',
	(int) 26 => '<p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.',
	(int) 27 => '<p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.',
	(int) 28 => '<p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.',
	(int) 29 => '<p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.',
	(int) 30 => '<p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.',
	(int) 31 => '<p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.',
	(int) 32 => '<p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.',
	(int) 33 => '<p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.',
	(int) 34 => '<p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.',
	(int) 35 => '<p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.',
	(int) 36 => '<p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.',
	(int) 37 => '<p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.',
	(int) 38 => '<p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.',
	(int) 39 => '<p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.',
	(int) 40 => '<p>24. Order accordingly.<p>',
	(int) 41 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 42
$i = (int) 25
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
Code Context
                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '855494',
			'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
			'appealno' => 'C.O. No. 2048 of 1989',
			'appellant' => 'Paltu Dutta',
			'authreffered' => '',
			'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
			'citingcases' => '',
			'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
			'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1989-09-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Amulya Kumar Nandi, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p style="text-align: justify;">2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p style="text-align: justify;">3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p style="text-align: justify;">4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p style="text-align: justify;">5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p style="text-align: justify;">6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p style="text-align: justify;">The Code of Civil Procedure (West Bengal</p><p style="text-align: justify;">Amendment) Act, 1988</p><p style="text-align: justify;">West Bengal Act XV of 1988</p><p style="text-align: justify;">Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p style="text-align: justify;">An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p style="text-align: justify;">Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p style="text-align: justify;">It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p style="text-align: justify;">1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p style="text-align: justify;"> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p style="text-align: justify;"> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p style="text-align: justify;"> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p style="text-align: justify;"> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p style="text-align: justify;"> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p style="text-align: justify;"> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p style="text-align: justify;"> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p style="text-align: justify;"> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p style="text-align: justify;">7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p style="text-align: justify;">8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p style="text-align: justify;">9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p style="text-align: justify;">10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p style="text-align: justify;">11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p style="text-align: justify;">12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p style="text-align: justify;">13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p style="text-align: justify;">14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p style="text-align: justify;">14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p style="text-align: justify;">15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p style="text-align: justify;">16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p style="text-align: justify;">17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p style="text-align: justify;">18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p style="text-align: justify;">19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p style="text-align: justify;">20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p style="text-align: justify;">21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p style="text-align: justify;">22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p style="text-align: justify;">23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p style="text-align: justify;">24. Order accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1990Cal262,94CWN1',
			'ratiodecidendi' => '',
			'respondent' => 'S.M. Nibedita Roy',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'paltu-dutta-vs-s-m-nibedita-roy',
	'args' => array(
		(int) 0 => '855494',
		(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
	)
)
$title_for_layout = 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '855494',
		'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
		'appealno' => 'C.O. No. 2048 of 1989',
		'appellant' => 'Paltu Dutta',
		'authreffered' => '',
		'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
		'citingcases' => '',
		'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
		'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1989-09-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Amulya Kumar Nandi, J.',
		'judgement' => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p>The Code of Civil Procedure (West Bengal</p><p>Amendment) Act, 1988</p><p>West Bengal Act XV of 1988</p><p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p>24. Order accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1990Cal262,94CWN1',
		'ratiodecidendi' => '',
		'respondent' => 'S.M. Nibedita Roy',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'paltu-dutta-vs-s-m-nibedita-roy'
$args = array(
	(int) 0 => '855494',
	(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
)
$url = 'https://sooperkanoon.com/case/amp/855494/paltu-dutta-vs-s-m-nibedita-roy'
$ctype = ' High Court'
$caseref = 'Hastings Mills Ltd. v. Hira Singh<br>'
$content = array(
	(int) 0 => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.',
	(int) 1 => '<p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.',
	(int) 2 => '<p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.',
	(int) 3 => '<p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,',
	(int) 4 => '<p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.',
	(int) 5 => '<p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.',
	(int) 6 => '<p>The Code of Civil Procedure (West Bengal',
	(int) 7 => '<p>Amendment) Act, 1988',
	(int) 8 => '<p>West Bengal Act XV of 1988',
	(int) 9 => '<p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.',
	(int) 10 => '<p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.',
	(int) 11 => '<p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.',
	(int) 12 => '<p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--',
	(int) 13 => '<p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-',
	(int) 14 => '<p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.',
	(int) 15 => '<p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.',
	(int) 16 => '<p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--',
	(int) 17 => '<p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.',
	(int) 18 => '<p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.',
	(int) 19 => '<p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.',
	(int) 20 => '<p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.',
	(int) 21 => '<p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' ',
	(int) 22 => '<p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .',
	(int) 23 => '<p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.',
	(int) 24 => '<p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.',
	(int) 25 => '<p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.',
	(int) 26 => '<p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.',
	(int) 27 => '<p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.',
	(int) 28 => '<p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.',
	(int) 29 => '<p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.',
	(int) 30 => '<p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.',
	(int) 31 => '<p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.',
	(int) 32 => '<p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.',
	(int) 33 => '<p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.',
	(int) 34 => '<p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.',
	(int) 35 => '<p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.',
	(int) 36 => '<p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.',
	(int) 37 => '<p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.',
	(int) 38 => '<p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.',
	(int) 39 => '<p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.',
	(int) 40 => '<p>24. Order accordingly.<p>',
	(int) 41 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 42
$i = (int) 26
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by Constitution of India? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
Code Context
                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '855494',
			'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
			'appealno' => 'C.O. No. 2048 of 1989',
			'appellant' => 'Paltu Dutta',
			'authreffered' => '',
			'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
			'citingcases' => '',
			'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
			'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1989-09-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Amulya Kumar Nandi, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p style="text-align: justify;">2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p style="text-align: justify;">3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p style="text-align: justify;">4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p style="text-align: justify;">5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p style="text-align: justify;">6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p style="text-align: justify;">The Code of Civil Procedure (West Bengal</p><p style="text-align: justify;">Amendment) Act, 1988</p><p style="text-align: justify;">West Bengal Act XV of 1988</p><p style="text-align: justify;">Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p style="text-align: justify;">An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p style="text-align: justify;">Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p style="text-align: justify;">It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p style="text-align: justify;">1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p style="text-align: justify;"> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p style="text-align: justify;"> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p style="text-align: justify;"> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p style="text-align: justify;"> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p style="text-align: justify;"> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p style="text-align: justify;"> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p style="text-align: justify;"> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p style="text-align: justify;"> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p style="text-align: justify;">7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p style="text-align: justify;">8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p style="text-align: justify;">9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p style="text-align: justify;">10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p style="text-align: justify;">11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p style="text-align: justify;">12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p style="text-align: justify;">13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p style="text-align: justify;">14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p style="text-align: justify;">14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p style="text-align: justify;">15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p style="text-align: justify;">16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p style="text-align: justify;">17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p style="text-align: justify;">18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p style="text-align: justify;">19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p style="text-align: justify;">20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p style="text-align: justify;">21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p style="text-align: justify;">22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p style="text-align: justify;">23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p style="text-align: justify;">24. Order accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1990Cal262,94CWN1',
			'ratiodecidendi' => '',
			'respondent' => 'S.M. Nibedita Roy',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'paltu-dutta-vs-s-m-nibedita-roy',
	'args' => array(
		(int) 0 => '855494',
		(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
	)
)
$title_for_layout = 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '855494',
		'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
		'appealno' => 'C.O. No. 2048 of 1989',
		'appellant' => 'Paltu Dutta',
		'authreffered' => '',
		'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
		'citingcases' => '',
		'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
		'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1989-09-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Amulya Kumar Nandi, J.',
		'judgement' => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p>The Code of Civil Procedure (West Bengal</p><p>Amendment) Act, 1988</p><p>West Bengal Act XV of 1988</p><p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p>24. Order accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1990Cal262,94CWN1',
		'ratiodecidendi' => '',
		'respondent' => 'S.M. Nibedita Roy',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'paltu-dutta-vs-s-m-nibedita-roy'
$args = array(
	(int) 0 => '855494',
	(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
)
$url = 'https://sooperkanoon.com/case/amp/855494/paltu-dutta-vs-s-m-nibedita-roy'
$ctype = ' High Court'
$caseref = 'Hastings Mills Ltd. v. Hira Singh<br>'
$content = array(
	(int) 0 => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.',
	(int) 1 => '<p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.',
	(int) 2 => '<p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.',
	(int) 3 => '<p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,',
	(int) 4 => '<p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.',
	(int) 5 => '<p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.',
	(int) 6 => '<p>The Code of Civil Procedure (West Bengal',
	(int) 7 => '<p>Amendment) Act, 1988',
	(int) 8 => '<p>West Bengal Act XV of 1988',
	(int) 9 => '<p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.',
	(int) 10 => '<p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.',
	(int) 11 => '<p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.',
	(int) 12 => '<p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--',
	(int) 13 => '<p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-',
	(int) 14 => '<p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.',
	(int) 15 => '<p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.',
	(int) 16 => '<p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--',
	(int) 17 => '<p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.',
	(int) 18 => '<p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.',
	(int) 19 => '<p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.',
	(int) 20 => '<p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.',
	(int) 21 => '<p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' ',
	(int) 22 => '<p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .',
	(int) 23 => '<p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.',
	(int) 24 => '<p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.',
	(int) 25 => '<p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.',
	(int) 26 => '<p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.',
	(int) 27 => '<p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.',
	(int) 28 => '<p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.',
	(int) 29 => '<p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.',
	(int) 30 => '<p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.',
	(int) 31 => '<p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.',
	(int) 32 => '<p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.',
	(int) 33 => '<p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.',
	(int) 34 => '<p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.',
	(int) 35 => '<p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.',
	(int) 36 => '<p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.',
	(int) 37 => '<p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.',
	(int) 38 => '<p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.',
	(int) 39 => '<p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.',
	(int) 40 => '<p>24. Order accordingly.<p>',
	(int) 41 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 42
$i = (int) 27
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
Code Context
                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '855494',
			'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
			'appealno' => 'C.O. No. 2048 of 1989',
			'appellant' => 'Paltu Dutta',
			'authreffered' => '',
			'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
			'citingcases' => '',
			'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
			'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1989-09-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Amulya Kumar Nandi, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p style="text-align: justify;">2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p style="text-align: justify;">3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p style="text-align: justify;">4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p style="text-align: justify;">5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p style="text-align: justify;">6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p style="text-align: justify;">The Code of Civil Procedure (West Bengal</p><p style="text-align: justify;">Amendment) Act, 1988</p><p style="text-align: justify;">West Bengal Act XV of 1988</p><p style="text-align: justify;">Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p style="text-align: justify;">An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p style="text-align: justify;">Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p style="text-align: justify;">It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p style="text-align: justify;">1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p style="text-align: justify;"> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p style="text-align: justify;"> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p style="text-align: justify;"> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p style="text-align: justify;"> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p style="text-align: justify;"> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p style="text-align: justify;"> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p style="text-align: justify;"> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p style="text-align: justify;"> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p style="text-align: justify;">7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p style="text-align: justify;">8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p style="text-align: justify;">9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p style="text-align: justify;">10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p style="text-align: justify;">11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p style="text-align: justify;">12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p style="text-align: justify;">13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p style="text-align: justify;">14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p style="text-align: justify;">14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p style="text-align: justify;">15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p style="text-align: justify;">16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p style="text-align: justify;">17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p style="text-align: justify;">18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p style="text-align: justify;">19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p style="text-align: justify;">20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p style="text-align: justify;">21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p style="text-align: justify;">22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p style="text-align: justify;">23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p style="text-align: justify;">24. Order accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1990Cal262,94CWN1',
			'ratiodecidendi' => '',
			'respondent' => 'S.M. Nibedita Roy',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'paltu-dutta-vs-s-m-nibedita-roy',
	'args' => array(
		(int) 0 => '855494',
		(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
	)
)
$title_for_layout = 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '855494',
		'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
		'appealno' => 'C.O. No. 2048 of 1989',
		'appellant' => 'Paltu Dutta',
		'authreffered' => '',
		'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
		'citingcases' => '',
		'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
		'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1989-09-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Amulya Kumar Nandi, J.',
		'judgement' => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p>The Code of Civil Procedure (West Bengal</p><p>Amendment) Act, 1988</p><p>West Bengal Act XV of 1988</p><p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p>24. Order accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1990Cal262,94CWN1',
		'ratiodecidendi' => '',
		'respondent' => 'S.M. Nibedita Roy',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'paltu-dutta-vs-s-m-nibedita-roy'
$args = array(
	(int) 0 => '855494',
	(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
)
$url = 'https://sooperkanoon.com/case/amp/855494/paltu-dutta-vs-s-m-nibedita-roy'
$ctype = ' High Court'
$caseref = 'Hastings Mills Ltd. v. Hira Singh<br>'
$content = array(
	(int) 0 => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.',
	(int) 1 => '<p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.',
	(int) 2 => '<p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.',
	(int) 3 => '<p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,',
	(int) 4 => '<p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.',
	(int) 5 => '<p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.',
	(int) 6 => '<p>The Code of Civil Procedure (West Bengal',
	(int) 7 => '<p>Amendment) Act, 1988',
	(int) 8 => '<p>West Bengal Act XV of 1988',
	(int) 9 => '<p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.',
	(int) 10 => '<p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.',
	(int) 11 => '<p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.',
	(int) 12 => '<p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--',
	(int) 13 => '<p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-',
	(int) 14 => '<p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.',
	(int) 15 => '<p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.',
	(int) 16 => '<p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--',
	(int) 17 => '<p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.',
	(int) 18 => '<p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.',
	(int) 19 => '<p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.',
	(int) 20 => '<p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.',
	(int) 21 => '<p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' ',
	(int) 22 => '<p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .',
	(int) 23 => '<p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.',
	(int) 24 => '<p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.',
	(int) 25 => '<p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.',
	(int) 26 => '<p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.',
	(int) 27 => '<p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.',
	(int) 28 => '<p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.',
	(int) 29 => '<p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.',
	(int) 30 => '<p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.',
	(int) 31 => '<p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.',
	(int) 32 => '<p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.',
	(int) 33 => '<p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.',
	(int) 34 => '<p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.',
	(int) 35 => '<p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.',
	(int) 36 => '<p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.',
	(int) 37 => '<p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.',
	(int) 38 => '<p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.',
	(int) 39 => '<p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.',
	(int) 40 => '<p>24. Order accordingly.<p>',
	(int) 41 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 42
$i = (int) 28
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
Code Context
                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '855494',
			'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
			'appealno' => 'C.O. No. 2048 of 1989',
			'appellant' => 'Paltu Dutta',
			'authreffered' => '',
			'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
			'citingcases' => '',
			'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
			'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1989-09-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Amulya Kumar Nandi, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p style="text-align: justify;">2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p style="text-align: justify;">3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p style="text-align: justify;">4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p style="text-align: justify;">5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p style="text-align: justify;">6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p style="text-align: justify;">The Code of Civil Procedure (West Bengal</p><p style="text-align: justify;">Amendment) Act, 1988</p><p style="text-align: justify;">West Bengal Act XV of 1988</p><p style="text-align: justify;">Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p style="text-align: justify;">An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p style="text-align: justify;">Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p style="text-align: justify;">It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p style="text-align: justify;">1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p style="text-align: justify;"> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p style="text-align: justify;"> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p style="text-align: justify;"> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p style="text-align: justify;"> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p style="text-align: justify;"> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p style="text-align: justify;"> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p style="text-align: justify;"> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p style="text-align: justify;"> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p style="text-align: justify;">7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p style="text-align: justify;">8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p style="text-align: justify;">9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p style="text-align: justify;">10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p style="text-align: justify;">11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p style="text-align: justify;">12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p style="text-align: justify;">13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p style="text-align: justify;">14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p style="text-align: justify;">14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p style="text-align: justify;">15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p style="text-align: justify;">16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p style="text-align: justify;">17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p style="text-align: justify;">18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p style="text-align: justify;">19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p style="text-align: justify;">20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p style="text-align: justify;">21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p style="text-align: justify;">22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p style="text-align: justify;">23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p style="text-align: justify;">24. Order accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1990Cal262,94CWN1',
			'ratiodecidendi' => '',
			'respondent' => 'S.M. Nibedita Roy',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'paltu-dutta-vs-s-m-nibedita-roy',
	'args' => array(
		(int) 0 => '855494',
		(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
	)
)
$title_for_layout = 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '855494',
		'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
		'appealno' => 'C.O. No. 2048 of 1989',
		'appellant' => 'Paltu Dutta',
		'authreffered' => '',
		'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
		'citingcases' => '',
		'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
		'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1989-09-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Amulya Kumar Nandi, J.',
		'judgement' => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p>The Code of Civil Procedure (West Bengal</p><p>Amendment) Act, 1988</p><p>West Bengal Act XV of 1988</p><p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p>24. Order accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1990Cal262,94CWN1',
		'ratiodecidendi' => '',
		'respondent' => 'S.M. Nibedita Roy',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'paltu-dutta-vs-s-m-nibedita-roy'
$args = array(
	(int) 0 => '855494',
	(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
)
$url = 'https://sooperkanoon.com/case/amp/855494/paltu-dutta-vs-s-m-nibedita-roy'
$ctype = ' High Court'
$caseref = 'Hastings Mills Ltd. v. Hira Singh<br>'
$content = array(
	(int) 0 => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.',
	(int) 1 => '<p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.',
	(int) 2 => '<p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.',
	(int) 3 => '<p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,',
	(int) 4 => '<p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.',
	(int) 5 => '<p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.',
	(int) 6 => '<p>The Code of Civil Procedure (West Bengal',
	(int) 7 => '<p>Amendment) Act, 1988',
	(int) 8 => '<p>West Bengal Act XV of 1988',
	(int) 9 => '<p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.',
	(int) 10 => '<p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.',
	(int) 11 => '<p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.',
	(int) 12 => '<p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--',
	(int) 13 => '<p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-',
	(int) 14 => '<p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.',
	(int) 15 => '<p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.',
	(int) 16 => '<p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--',
	(int) 17 => '<p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.',
	(int) 18 => '<p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.',
	(int) 19 => '<p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.',
	(int) 20 => '<p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.',
	(int) 21 => '<p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' ',
	(int) 22 => '<p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .',
	(int) 23 => '<p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.',
	(int) 24 => '<p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.',
	(int) 25 => '<p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.',
	(int) 26 => '<p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.',
	(int) 27 => '<p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.',
	(int) 28 => '<p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.',
	(int) 29 => '<p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.',
	(int) 30 => '<p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.',
	(int) 31 => '<p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.',
	(int) 32 => '<p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.',
	(int) 33 => '<p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.',
	(int) 34 => '<p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.',
	(int) 35 => '<p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.',
	(int) 36 => '<p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.',
	(int) 37 => '<p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.',
	(int) 38 => '<p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.',
	(int) 39 => '<p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.',
	(int) 40 => '<p>24. Order accordingly.<p>',
	(int) 41 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 42
$i = (int) 29
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
Code Context
                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '855494',
			'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
			'appealno' => 'C.O. No. 2048 of 1989',
			'appellant' => 'Paltu Dutta',
			'authreffered' => '',
			'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
			'citingcases' => '',
			'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
			'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1989-09-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Amulya Kumar Nandi, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p style="text-align: justify;">2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p style="text-align: justify;">3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p style="text-align: justify;">4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p style="text-align: justify;">5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p style="text-align: justify;">6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p style="text-align: justify;">The Code of Civil Procedure (West Bengal</p><p style="text-align: justify;">Amendment) Act, 1988</p><p style="text-align: justify;">West Bengal Act XV of 1988</p><p style="text-align: justify;">Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p style="text-align: justify;">An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p style="text-align: justify;">Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p style="text-align: justify;">It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p style="text-align: justify;">1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p style="text-align: justify;"> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p style="text-align: justify;"> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p style="text-align: justify;"> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p style="text-align: justify;"> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p style="text-align: justify;"> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p style="text-align: justify;"> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p style="text-align: justify;"> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p style="text-align: justify;"> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p style="text-align: justify;">7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p style="text-align: justify;">8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p style="text-align: justify;">9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p style="text-align: justify;">10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p style="text-align: justify;">11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p style="text-align: justify;">12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p style="text-align: justify;">13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p style="text-align: justify;">14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p style="text-align: justify;">14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p style="text-align: justify;">15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p style="text-align: justify;">16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p style="text-align: justify;">17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p style="text-align: justify;">18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p style="text-align: justify;">19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p style="text-align: justify;">20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p style="text-align: justify;">21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p style="text-align: justify;">22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p style="text-align: justify;">23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p style="text-align: justify;">24. Order accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1990Cal262,94CWN1',
			'ratiodecidendi' => '',
			'respondent' => 'S.M. Nibedita Roy',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'paltu-dutta-vs-s-m-nibedita-roy',
	'args' => array(
		(int) 0 => '855494',
		(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
	)
)
$title_for_layout = 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '855494',
		'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
		'appealno' => 'C.O. No. 2048 of 1989',
		'appellant' => 'Paltu Dutta',
		'authreffered' => '',
		'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
		'citingcases' => '',
		'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
		'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1989-09-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Amulya Kumar Nandi, J.',
		'judgement' => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p>The Code of Civil Procedure (West Bengal</p><p>Amendment) Act, 1988</p><p>West Bengal Act XV of 1988</p><p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p>24. Order accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1990Cal262,94CWN1',
		'ratiodecidendi' => '',
		'respondent' => 'S.M. Nibedita Roy',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'paltu-dutta-vs-s-m-nibedita-roy'
$args = array(
	(int) 0 => '855494',
	(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
)
$url = 'https://sooperkanoon.com/case/amp/855494/paltu-dutta-vs-s-m-nibedita-roy'
$ctype = ' High Court'
$caseref = 'Hastings Mills Ltd. v. Hira Singh<br>'
$content = array(
	(int) 0 => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.',
	(int) 1 => '<p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.',
	(int) 2 => '<p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.',
	(int) 3 => '<p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,',
	(int) 4 => '<p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.',
	(int) 5 => '<p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.',
	(int) 6 => '<p>The Code of Civil Procedure (West Bengal',
	(int) 7 => '<p>Amendment) Act, 1988',
	(int) 8 => '<p>West Bengal Act XV of 1988',
	(int) 9 => '<p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.',
	(int) 10 => '<p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.',
	(int) 11 => '<p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.',
	(int) 12 => '<p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--',
	(int) 13 => '<p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-',
	(int) 14 => '<p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.',
	(int) 15 => '<p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.',
	(int) 16 => '<p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--',
	(int) 17 => '<p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.',
	(int) 18 => '<p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.',
	(int) 19 => '<p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.',
	(int) 20 => '<p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.',
	(int) 21 => '<p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' ',
	(int) 22 => '<p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .',
	(int) 23 => '<p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.',
	(int) 24 => '<p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.',
	(int) 25 => '<p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.',
	(int) 26 => '<p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.',
	(int) 27 => '<p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.',
	(int) 28 => '<p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.',
	(int) 29 => '<p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.',
	(int) 30 => '<p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.',
	(int) 31 => '<p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.',
	(int) 32 => '<p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.',
	(int) 33 => '<p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.',
	(int) 34 => '<p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.',
	(int) 35 => '<p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.',
	(int) 36 => '<p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.',
	(int) 37 => '<p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.',
	(int) 38 => '<p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.',
	(int) 39 => '<p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.',
	(int) 40 => '<p>24. Order accordingly.<p>',
	(int) 41 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 42
$i = (int) 30
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
Code Context
                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '855494',
			'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
			'appealno' => 'C.O. No. 2048 of 1989',
			'appellant' => 'Paltu Dutta',
			'authreffered' => '',
			'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
			'citingcases' => '',
			'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
			'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1989-09-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Amulya Kumar Nandi, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p style="text-align: justify;">2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p style="text-align: justify;">3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p style="text-align: justify;">4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p style="text-align: justify;">5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p style="text-align: justify;">6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p style="text-align: justify;">The Code of Civil Procedure (West Bengal</p><p style="text-align: justify;">Amendment) Act, 1988</p><p style="text-align: justify;">West Bengal Act XV of 1988</p><p style="text-align: justify;">Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p style="text-align: justify;">An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p style="text-align: justify;">Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p style="text-align: justify;">It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p style="text-align: justify;">1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p style="text-align: justify;"> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p style="text-align: justify;"> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p style="text-align: justify;"> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p style="text-align: justify;"> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p style="text-align: justify;"> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p style="text-align: justify;"> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p style="text-align: justify;"> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p style="text-align: justify;"> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p style="text-align: justify;">7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p style="text-align: justify;">8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p style="text-align: justify;">9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p style="text-align: justify;">10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p style="text-align: justify;">11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p style="text-align: justify;">12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p style="text-align: justify;">13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p style="text-align: justify;">14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p style="text-align: justify;">14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p style="text-align: justify;">15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p style="text-align: justify;">16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p style="text-align: justify;">17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p style="text-align: justify;">18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p style="text-align: justify;">19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p style="text-align: justify;">20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p style="text-align: justify;">21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p style="text-align: justify;">22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p style="text-align: justify;">23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p style="text-align: justify;">24. Order accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1990Cal262,94CWN1',
			'ratiodecidendi' => '',
			'respondent' => 'S.M. Nibedita Roy',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'paltu-dutta-vs-s-m-nibedita-roy',
	'args' => array(
		(int) 0 => '855494',
		(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
	)
)
$title_for_layout = 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '855494',
		'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
		'appealno' => 'C.O. No. 2048 of 1989',
		'appellant' => 'Paltu Dutta',
		'authreffered' => '',
		'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
		'citingcases' => '',
		'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
		'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1989-09-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Amulya Kumar Nandi, J.',
		'judgement' => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p>The Code of Civil Procedure (West Bengal</p><p>Amendment) Act, 1988</p><p>West Bengal Act XV of 1988</p><p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p>24. Order accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1990Cal262,94CWN1',
		'ratiodecidendi' => '',
		'respondent' => 'S.M. Nibedita Roy',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'paltu-dutta-vs-s-m-nibedita-roy'
$args = array(
	(int) 0 => '855494',
	(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
)
$url = 'https://sooperkanoon.com/case/amp/855494/paltu-dutta-vs-s-m-nibedita-roy'
$ctype = ' High Court'
$caseref = 'Hastings Mills Ltd. v. Hira Singh<br>'
$content = array(
	(int) 0 => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.',
	(int) 1 => '<p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.',
	(int) 2 => '<p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.',
	(int) 3 => '<p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,',
	(int) 4 => '<p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.',
	(int) 5 => '<p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.',
	(int) 6 => '<p>The Code of Civil Procedure (West Bengal',
	(int) 7 => '<p>Amendment) Act, 1988',
	(int) 8 => '<p>West Bengal Act XV of 1988',
	(int) 9 => '<p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.',
	(int) 10 => '<p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.',
	(int) 11 => '<p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.',
	(int) 12 => '<p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--',
	(int) 13 => '<p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-',
	(int) 14 => '<p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.',
	(int) 15 => '<p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.',
	(int) 16 => '<p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--',
	(int) 17 => '<p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.',
	(int) 18 => '<p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.',
	(int) 19 => '<p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.',
	(int) 20 => '<p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.',
	(int) 21 => '<p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' ',
	(int) 22 => '<p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .',
	(int) 23 => '<p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.',
	(int) 24 => '<p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.',
	(int) 25 => '<p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.',
	(int) 26 => '<p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.',
	(int) 27 => '<p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.',
	(int) 28 => '<p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.',
	(int) 29 => '<p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.',
	(int) 30 => '<p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.',
	(int) 31 => '<p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.',
	(int) 32 => '<p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.',
	(int) 33 => '<p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.',
	(int) 34 => '<p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.',
	(int) 35 => '<p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.',
	(int) 36 => '<p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.',
	(int) 37 => '<p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.',
	(int) 38 => '<p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.',
	(int) 39 => '<p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.',
	(int) 40 => '<p>24. Order accordingly.<p>',
	(int) 41 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 42
$i = (int) 31
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
Code Context
                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '855494',
			'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
			'appealno' => 'C.O. No. 2048 of 1989',
			'appellant' => 'Paltu Dutta',
			'authreffered' => '',
			'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
			'citingcases' => '',
			'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
			'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1989-09-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Amulya Kumar Nandi, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p style="text-align: justify;">2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p style="text-align: justify;">3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p style="text-align: justify;">4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p style="text-align: justify;">5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p style="text-align: justify;">6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p style="text-align: justify;">The Code of Civil Procedure (West Bengal</p><p style="text-align: justify;">Amendment) Act, 1988</p><p style="text-align: justify;">West Bengal Act XV of 1988</p><p style="text-align: justify;">Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p style="text-align: justify;">An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p style="text-align: justify;">Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p style="text-align: justify;">It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p style="text-align: justify;">1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p style="text-align: justify;"> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p style="text-align: justify;"> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p style="text-align: justify;"> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p style="text-align: justify;"> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p style="text-align: justify;"> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p style="text-align: justify;"> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p style="text-align: justify;"> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p style="text-align: justify;"> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p style="text-align: justify;">7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p style="text-align: justify;">8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p style="text-align: justify;">9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p style="text-align: justify;">10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p style="text-align: justify;">11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p style="text-align: justify;">12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p style="text-align: justify;">13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p style="text-align: justify;">14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p style="text-align: justify;">14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p style="text-align: justify;">15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p style="text-align: justify;">16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p style="text-align: justify;">17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p style="text-align: justify;">18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p style="text-align: justify;">19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p style="text-align: justify;">20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p style="text-align: justify;">21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p style="text-align: justify;">22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p style="text-align: justify;">23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p style="text-align: justify;">24. Order accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1990Cal262,94CWN1',
			'ratiodecidendi' => '',
			'respondent' => 'S.M. Nibedita Roy',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'paltu-dutta-vs-s-m-nibedita-roy',
	'args' => array(
		(int) 0 => '855494',
		(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
	)
)
$title_for_layout = 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '855494',
		'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
		'appealno' => 'C.O. No. 2048 of 1989',
		'appellant' => 'Paltu Dutta',
		'authreffered' => '',
		'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
		'citingcases' => '',
		'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
		'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1989-09-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Amulya Kumar Nandi, J.',
		'judgement' => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p>The Code of Civil Procedure (West Bengal</p><p>Amendment) Act, 1988</p><p>West Bengal Act XV of 1988</p><p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p>24. Order accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1990Cal262,94CWN1',
		'ratiodecidendi' => '',
		'respondent' => 'S.M. Nibedita Roy',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'paltu-dutta-vs-s-m-nibedita-roy'
$args = array(
	(int) 0 => '855494',
	(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
)
$url = 'https://sooperkanoon.com/case/amp/855494/paltu-dutta-vs-s-m-nibedita-roy'
$ctype = ' High Court'
$caseref = 'Hastings Mills Ltd. v. Hira Singh<br>'
$content = array(
	(int) 0 => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.',
	(int) 1 => '<p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.',
	(int) 2 => '<p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.',
	(int) 3 => '<p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,',
	(int) 4 => '<p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.',
	(int) 5 => '<p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.',
	(int) 6 => '<p>The Code of Civil Procedure (West Bengal',
	(int) 7 => '<p>Amendment) Act, 1988',
	(int) 8 => '<p>West Bengal Act XV of 1988',
	(int) 9 => '<p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.',
	(int) 10 => '<p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.',
	(int) 11 => '<p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.',
	(int) 12 => '<p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--',
	(int) 13 => '<p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-',
	(int) 14 => '<p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.',
	(int) 15 => '<p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.',
	(int) 16 => '<p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--',
	(int) 17 => '<p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.',
	(int) 18 => '<p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.',
	(int) 19 => '<p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.',
	(int) 20 => '<p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.',
	(int) 21 => '<p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' ',
	(int) 22 => '<p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .',
	(int) 23 => '<p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.',
	(int) 24 => '<p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.',
	(int) 25 => '<p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.',
	(int) 26 => '<p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.',
	(int) 27 => '<p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.',
	(int) 28 => '<p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.',
	(int) 29 => '<p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.',
	(int) 30 => '<p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.',
	(int) 31 => '<p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.',
	(int) 32 => '<p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.',
	(int) 33 => '<p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.',
	(int) 34 => '<p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.',
	(int) 35 => '<p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.',
	(int) 36 => '<p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.',
	(int) 37 => '<p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.',
	(int) 38 => '<p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.',
	(int) 39 => '<p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.',
	(int) 40 => '<p>24. Order accordingly.<p>',
	(int) 41 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 42
$i = (int) 32
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
Code Context
                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '855494',
			'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
			'appealno' => 'C.O. No. 2048 of 1989',
			'appellant' => 'Paltu Dutta',
			'authreffered' => '',
			'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
			'citingcases' => '',
			'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
			'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1989-09-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Amulya Kumar Nandi, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p style="text-align: justify;">2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p style="text-align: justify;">3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p style="text-align: justify;">4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p style="text-align: justify;">5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p style="text-align: justify;">6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p style="text-align: justify;">The Code of Civil Procedure (West Bengal</p><p style="text-align: justify;">Amendment) Act, 1988</p><p style="text-align: justify;">West Bengal Act XV of 1988</p><p style="text-align: justify;">Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p style="text-align: justify;">An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p style="text-align: justify;">Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p style="text-align: justify;">It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p style="text-align: justify;">1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p style="text-align: justify;"> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p style="text-align: justify;"> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p style="text-align: justify;"> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p style="text-align: justify;"> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p style="text-align: justify;"> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p style="text-align: justify;"> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p style="text-align: justify;"> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p style="text-align: justify;"> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p style="text-align: justify;">7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p style="text-align: justify;">8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p style="text-align: justify;">9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p style="text-align: justify;">10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p style="text-align: justify;">11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p style="text-align: justify;">12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p style="text-align: justify;">13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p style="text-align: justify;">14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p style="text-align: justify;">14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p style="text-align: justify;">15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p style="text-align: justify;">16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p style="text-align: justify;">17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p style="text-align: justify;">18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p style="text-align: justify;">19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p style="text-align: justify;">20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p style="text-align: justify;">21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p style="text-align: justify;">22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p style="text-align: justify;">23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p style="text-align: justify;">24. Order accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1990Cal262,94CWN1',
			'ratiodecidendi' => '',
			'respondent' => 'S.M. Nibedita Roy',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'paltu-dutta-vs-s-m-nibedita-roy',
	'args' => array(
		(int) 0 => '855494',
		(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
	)
)
$title_for_layout = 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '855494',
		'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
		'appealno' => 'C.O. No. 2048 of 1989',
		'appellant' => 'Paltu Dutta',
		'authreffered' => '',
		'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
		'citingcases' => '',
		'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
		'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1989-09-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Amulya Kumar Nandi, J.',
		'judgement' => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p>The Code of Civil Procedure (West Bengal</p><p>Amendment) Act, 1988</p><p>West Bengal Act XV of 1988</p><p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p>24. Order accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1990Cal262,94CWN1',
		'ratiodecidendi' => '',
		'respondent' => 'S.M. Nibedita Roy',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'paltu-dutta-vs-s-m-nibedita-roy'
$args = array(
	(int) 0 => '855494',
	(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
)
$url = 'https://sooperkanoon.com/case/amp/855494/paltu-dutta-vs-s-m-nibedita-roy'
$ctype = ' High Court'
$caseref = 'Hastings Mills Ltd. v. Hira Singh<br>'
$content = array(
	(int) 0 => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.',
	(int) 1 => '<p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.',
	(int) 2 => '<p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.',
	(int) 3 => '<p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,',
	(int) 4 => '<p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.',
	(int) 5 => '<p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.',
	(int) 6 => '<p>The Code of Civil Procedure (West Bengal',
	(int) 7 => '<p>Amendment) Act, 1988',
	(int) 8 => '<p>West Bengal Act XV of 1988',
	(int) 9 => '<p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.',
	(int) 10 => '<p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.',
	(int) 11 => '<p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.',
	(int) 12 => '<p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--',
	(int) 13 => '<p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-',
	(int) 14 => '<p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.',
	(int) 15 => '<p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.',
	(int) 16 => '<p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--',
	(int) 17 => '<p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.',
	(int) 18 => '<p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.',
	(int) 19 => '<p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.',
	(int) 20 => '<p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.',
	(int) 21 => '<p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' ',
	(int) 22 => '<p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .',
	(int) 23 => '<p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.',
	(int) 24 => '<p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.',
	(int) 25 => '<p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.',
	(int) 26 => '<p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.',
	(int) 27 => '<p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.',
	(int) 28 => '<p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.',
	(int) 29 => '<p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.',
	(int) 30 => '<p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.',
	(int) 31 => '<p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.',
	(int) 32 => '<p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.',
	(int) 33 => '<p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.',
	(int) 34 => '<p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.',
	(int) 35 => '<p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.',
	(int) 36 => '<p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.',
	(int) 37 => '<p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.',
	(int) 38 => '<p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.',
	(int) 39 => '<p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.',
	(int) 40 => '<p>24. Order accordingly.<p>',
	(int) 41 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 42
$i = (int) 33
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
Code Context
                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '855494',
			'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
			'appealno' => 'C.O. No. 2048 of 1989',
			'appellant' => 'Paltu Dutta',
			'authreffered' => '',
			'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
			'citingcases' => '',
			'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
			'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1989-09-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Amulya Kumar Nandi, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p style="text-align: justify;">2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p style="text-align: justify;">3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p style="text-align: justify;">4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p style="text-align: justify;">5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p style="text-align: justify;">6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p style="text-align: justify;">The Code of Civil Procedure (West Bengal</p><p style="text-align: justify;">Amendment) Act, 1988</p><p style="text-align: justify;">West Bengal Act XV of 1988</p><p style="text-align: justify;">Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p style="text-align: justify;">An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p style="text-align: justify;">Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p style="text-align: justify;">It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p style="text-align: justify;">1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p style="text-align: justify;"> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p style="text-align: justify;"> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p style="text-align: justify;"> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p style="text-align: justify;"> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p style="text-align: justify;"> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p style="text-align: justify;"> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p style="text-align: justify;"> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p style="text-align: justify;"> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p style="text-align: justify;">7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p style="text-align: justify;">8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p style="text-align: justify;">9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p style="text-align: justify;">10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p style="text-align: justify;">11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p style="text-align: justify;">12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p style="text-align: justify;">13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p style="text-align: justify;">14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p style="text-align: justify;">14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p style="text-align: justify;">15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p style="text-align: justify;">16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p style="text-align: justify;">17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p style="text-align: justify;">18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p style="text-align: justify;">19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p style="text-align: justify;">20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p style="text-align: justify;">21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p style="text-align: justify;">22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p style="text-align: justify;">23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p style="text-align: justify;">24. Order accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1990Cal262,94CWN1',
			'ratiodecidendi' => '',
			'respondent' => 'S.M. Nibedita Roy',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'paltu-dutta-vs-s-m-nibedita-roy',
	'args' => array(
		(int) 0 => '855494',
		(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
	)
)
$title_for_layout = 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '855494',
		'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
		'appealno' => 'C.O. No. 2048 of 1989',
		'appellant' => 'Paltu Dutta',
		'authreffered' => '',
		'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
		'citingcases' => '',
		'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
		'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1989-09-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Amulya Kumar Nandi, J.',
		'judgement' => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p>The Code of Civil Procedure (West Bengal</p><p>Amendment) Act, 1988</p><p>West Bengal Act XV of 1988</p><p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p>24. Order accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1990Cal262,94CWN1',
		'ratiodecidendi' => '',
		'respondent' => 'S.M. Nibedita Roy',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'paltu-dutta-vs-s-m-nibedita-roy'
$args = array(
	(int) 0 => '855494',
	(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
)
$url = 'https://sooperkanoon.com/case/amp/855494/paltu-dutta-vs-s-m-nibedita-roy'
$ctype = ' High Court'
$caseref = 'Hastings Mills Ltd. v. Hira Singh<br>'
$content = array(
	(int) 0 => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.',
	(int) 1 => '<p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.',
	(int) 2 => '<p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.',
	(int) 3 => '<p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,',
	(int) 4 => '<p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.',
	(int) 5 => '<p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.',
	(int) 6 => '<p>The Code of Civil Procedure (West Bengal',
	(int) 7 => '<p>Amendment) Act, 1988',
	(int) 8 => '<p>West Bengal Act XV of 1988',
	(int) 9 => '<p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.',
	(int) 10 => '<p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.',
	(int) 11 => '<p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.',
	(int) 12 => '<p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--',
	(int) 13 => '<p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-',
	(int) 14 => '<p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.',
	(int) 15 => '<p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.',
	(int) 16 => '<p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--',
	(int) 17 => '<p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.',
	(int) 18 => '<p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.',
	(int) 19 => '<p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.',
	(int) 20 => '<p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.',
	(int) 21 => '<p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' ',
	(int) 22 => '<p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .',
	(int) 23 => '<p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.',
	(int) 24 => '<p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.',
	(int) 25 => '<p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.',
	(int) 26 => '<p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.',
	(int) 27 => '<p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.',
	(int) 28 => '<p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.',
	(int) 29 => '<p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.',
	(int) 30 => '<p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.',
	(int) 31 => '<p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.',
	(int) 32 => '<p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.',
	(int) 33 => '<p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.',
	(int) 34 => '<p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.',
	(int) 35 => '<p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.',
	(int) 36 => '<p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.',
	(int) 37 => '<p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.',
	(int) 38 => '<p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.',
	(int) 39 => '<p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.',
	(int) 40 => '<p>24. Order accordingly.<p>',
	(int) 41 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 42
$i = (int) 34
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
Code Context
                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '855494',
			'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
			'appealno' => 'C.O. No. 2048 of 1989',
			'appellant' => 'Paltu Dutta',
			'authreffered' => '',
			'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
			'citingcases' => '',
			'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
			'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1989-09-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Amulya Kumar Nandi, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p style="text-align: justify;">2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p style="text-align: justify;">3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p style="text-align: justify;">4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p style="text-align: justify;">5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p style="text-align: justify;">6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p style="text-align: justify;">The Code of Civil Procedure (West Bengal</p><p style="text-align: justify;">Amendment) Act, 1988</p><p style="text-align: justify;">West Bengal Act XV of 1988</p><p style="text-align: justify;">Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p style="text-align: justify;">An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p style="text-align: justify;">Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p style="text-align: justify;">It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p style="text-align: justify;">1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p style="text-align: justify;"> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p style="text-align: justify;"> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p style="text-align: justify;"> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p style="text-align: justify;"> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p style="text-align: justify;"> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p style="text-align: justify;"> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p style="text-align: justify;"> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p style="text-align: justify;"> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p style="text-align: justify;">7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p style="text-align: justify;">8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p style="text-align: justify;">9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p style="text-align: justify;">10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p style="text-align: justify;">11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p style="text-align: justify;">12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p style="text-align: justify;">13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p style="text-align: justify;">14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p style="text-align: justify;">14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p style="text-align: justify;">15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p style="text-align: justify;">16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p style="text-align: justify;">17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p style="text-align: justify;">18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p style="text-align: justify;">19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p style="text-align: justify;">20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p style="text-align: justify;">21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p style="text-align: justify;">22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p style="text-align: justify;">23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p style="text-align: justify;">24. Order accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1990Cal262,94CWN1',
			'ratiodecidendi' => '',
			'respondent' => 'S.M. Nibedita Roy',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'paltu-dutta-vs-s-m-nibedita-roy',
	'args' => array(
		(int) 0 => '855494',
		(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
	)
)
$title_for_layout = 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '855494',
		'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
		'appealno' => 'C.O. No. 2048 of 1989',
		'appellant' => 'Paltu Dutta',
		'authreffered' => '',
		'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
		'citingcases' => '',
		'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
		'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1989-09-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Amulya Kumar Nandi, J.',
		'judgement' => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p>The Code of Civil Procedure (West Bengal</p><p>Amendment) Act, 1988</p><p>West Bengal Act XV of 1988</p><p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p>24. Order accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1990Cal262,94CWN1',
		'ratiodecidendi' => '',
		'respondent' => 'S.M. Nibedita Roy',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'paltu-dutta-vs-s-m-nibedita-roy'
$args = array(
	(int) 0 => '855494',
	(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
)
$url = 'https://sooperkanoon.com/case/amp/855494/paltu-dutta-vs-s-m-nibedita-roy'
$ctype = ' High Court'
$caseref = 'Hastings Mills Ltd. v. Hira Singh<br>'
$content = array(
	(int) 0 => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.',
	(int) 1 => '<p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.',
	(int) 2 => '<p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.',
	(int) 3 => '<p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,',
	(int) 4 => '<p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.',
	(int) 5 => '<p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.',
	(int) 6 => '<p>The Code of Civil Procedure (West Bengal',
	(int) 7 => '<p>Amendment) Act, 1988',
	(int) 8 => '<p>West Bengal Act XV of 1988',
	(int) 9 => '<p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.',
	(int) 10 => '<p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.',
	(int) 11 => '<p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.',
	(int) 12 => '<p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--',
	(int) 13 => '<p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-',
	(int) 14 => '<p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.',
	(int) 15 => '<p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.',
	(int) 16 => '<p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--',
	(int) 17 => '<p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.',
	(int) 18 => '<p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.',
	(int) 19 => '<p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.',
	(int) 20 => '<p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.',
	(int) 21 => '<p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' ',
	(int) 22 => '<p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .',
	(int) 23 => '<p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.',
	(int) 24 => '<p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.',
	(int) 25 => '<p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.',
	(int) 26 => '<p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.',
	(int) 27 => '<p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.',
	(int) 28 => '<p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.',
	(int) 29 => '<p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.',
	(int) 30 => '<p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.',
	(int) 31 => '<p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.',
	(int) 32 => '<p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.',
	(int) 33 => '<p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.',
	(int) 34 => '<p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.',
	(int) 35 => '<p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.',
	(int) 36 => '<p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.',
	(int) 37 => '<p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.',
	(int) 38 => '<p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.',
	(int) 39 => '<p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.',
	(int) 40 => '<p>24. Order accordingly.<p>',
	(int) 41 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 42
$i = (int) 35
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
Code Context
                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '855494',
			'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
			'appealno' => 'C.O. No. 2048 of 1989',
			'appellant' => 'Paltu Dutta',
			'authreffered' => '',
			'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
			'citingcases' => '',
			'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
			'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1989-09-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Amulya Kumar Nandi, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p style="text-align: justify;">2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p style="text-align: justify;">3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p style="text-align: justify;">4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p style="text-align: justify;">5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p style="text-align: justify;">6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p style="text-align: justify;">The Code of Civil Procedure (West Bengal</p><p style="text-align: justify;">Amendment) Act, 1988</p><p style="text-align: justify;">West Bengal Act XV of 1988</p><p style="text-align: justify;">Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p style="text-align: justify;">An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p style="text-align: justify;">Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p style="text-align: justify;">It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p style="text-align: justify;">1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p style="text-align: justify;"> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p style="text-align: justify;"> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p style="text-align: justify;"> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p style="text-align: justify;"> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p style="text-align: justify;"> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p style="text-align: justify;"> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p style="text-align: justify;"> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p style="text-align: justify;"> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p style="text-align: justify;">7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p style="text-align: justify;">8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p style="text-align: justify;">9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p style="text-align: justify;">10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p style="text-align: justify;">11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p style="text-align: justify;">12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p style="text-align: justify;">13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p style="text-align: justify;">14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p style="text-align: justify;">14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p style="text-align: justify;">15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p style="text-align: justify;">16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p style="text-align: justify;">17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p style="text-align: justify;">18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p style="text-align: justify;">19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p style="text-align: justify;">20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p style="text-align: justify;">21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p style="text-align: justify;">22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p style="text-align: justify;">23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p style="text-align: justify;">24. Order accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1990Cal262,94CWN1',
			'ratiodecidendi' => '',
			'respondent' => 'S.M. Nibedita Roy',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'paltu-dutta-vs-s-m-nibedita-roy',
	'args' => array(
		(int) 0 => '855494',
		(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
	)
)
$title_for_layout = 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '855494',
		'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
		'appealno' => 'C.O. No. 2048 of 1989',
		'appellant' => 'Paltu Dutta',
		'authreffered' => '',
		'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
		'citingcases' => '',
		'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
		'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1989-09-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Amulya Kumar Nandi, J.',
		'judgement' => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p>The Code of Civil Procedure (West Bengal</p><p>Amendment) Act, 1988</p><p>West Bengal Act XV of 1988</p><p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p>24. Order accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1990Cal262,94CWN1',
		'ratiodecidendi' => '',
		'respondent' => 'S.M. Nibedita Roy',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'paltu-dutta-vs-s-m-nibedita-roy'
$args = array(
	(int) 0 => '855494',
	(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
)
$url = 'https://sooperkanoon.com/case/amp/855494/paltu-dutta-vs-s-m-nibedita-roy'
$ctype = ' High Court'
$caseref = 'Hastings Mills Ltd. v. Hira Singh<br>'
$content = array(
	(int) 0 => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.',
	(int) 1 => '<p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.',
	(int) 2 => '<p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.',
	(int) 3 => '<p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,',
	(int) 4 => '<p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.',
	(int) 5 => '<p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.',
	(int) 6 => '<p>The Code of Civil Procedure (West Bengal',
	(int) 7 => '<p>Amendment) Act, 1988',
	(int) 8 => '<p>West Bengal Act XV of 1988',
	(int) 9 => '<p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.',
	(int) 10 => '<p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.',
	(int) 11 => '<p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.',
	(int) 12 => '<p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--',
	(int) 13 => '<p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-',
	(int) 14 => '<p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.',
	(int) 15 => '<p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.',
	(int) 16 => '<p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--',
	(int) 17 => '<p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.',
	(int) 18 => '<p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.',
	(int) 19 => '<p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.',
	(int) 20 => '<p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.',
	(int) 21 => '<p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' ',
	(int) 22 => '<p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .',
	(int) 23 => '<p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.',
	(int) 24 => '<p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.',
	(int) 25 => '<p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.',
	(int) 26 => '<p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.',
	(int) 27 => '<p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.',
	(int) 28 => '<p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.',
	(int) 29 => '<p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.',
	(int) 30 => '<p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.',
	(int) 31 => '<p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.',
	(int) 32 => '<p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.',
	(int) 33 => '<p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.',
	(int) 34 => '<p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.',
	(int) 35 => '<p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.',
	(int) 36 => '<p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.',
	(int) 37 => '<p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.',
	(int) 38 => '<p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.',
	(int) 39 => '<p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.',
	(int) 40 => '<p>24. Order accordingly.<p>',
	(int) 41 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 42
$i = (int) 36
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
Code Context
                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '855494',
			'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
			'appealno' => 'C.O. No. 2048 of 1989',
			'appellant' => 'Paltu Dutta',
			'authreffered' => '',
			'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
			'citingcases' => '',
			'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
			'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1989-09-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Amulya Kumar Nandi, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p style="text-align: justify;">2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p style="text-align: justify;">3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p style="text-align: justify;">4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p style="text-align: justify;">5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p style="text-align: justify;">6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p style="text-align: justify;">The Code of Civil Procedure (West Bengal</p><p style="text-align: justify;">Amendment) Act, 1988</p><p style="text-align: justify;">West Bengal Act XV of 1988</p><p style="text-align: justify;">Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p style="text-align: justify;">An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p style="text-align: justify;">Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p style="text-align: justify;">It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p style="text-align: justify;">1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p style="text-align: justify;"> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p style="text-align: justify;"> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p style="text-align: justify;"> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p style="text-align: justify;"> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p style="text-align: justify;"> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p style="text-align: justify;"> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p style="text-align: justify;"> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p style="text-align: justify;"> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p style="text-align: justify;">7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p style="text-align: justify;">8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p style="text-align: justify;">9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p style="text-align: justify;">10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p style="text-align: justify;">11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p style="text-align: justify;">12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p style="text-align: justify;">13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p style="text-align: justify;">14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p style="text-align: justify;">14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p style="text-align: justify;">15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p style="text-align: justify;">16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p style="text-align: justify;">17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p style="text-align: justify;">18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p style="text-align: justify;">19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p style="text-align: justify;">20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p style="text-align: justify;">21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p style="text-align: justify;">22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p style="text-align: justify;">23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p style="text-align: justify;">24. Order accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1990Cal262,94CWN1',
			'ratiodecidendi' => '',
			'respondent' => 'S.M. Nibedita Roy',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'paltu-dutta-vs-s-m-nibedita-roy',
	'args' => array(
		(int) 0 => '855494',
		(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
	)
)
$title_for_layout = 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '855494',
		'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
		'appealno' => 'C.O. No. 2048 of 1989',
		'appellant' => 'Paltu Dutta',
		'authreffered' => '',
		'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
		'citingcases' => '',
		'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
		'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1989-09-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Amulya Kumar Nandi, J.',
		'judgement' => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p>The Code of Civil Procedure (West Bengal</p><p>Amendment) Act, 1988</p><p>West Bengal Act XV of 1988</p><p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p>24. Order accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1990Cal262,94CWN1',
		'ratiodecidendi' => '',
		'respondent' => 'S.M. Nibedita Roy',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'paltu-dutta-vs-s-m-nibedita-roy'
$args = array(
	(int) 0 => '855494',
	(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
)
$url = 'https://sooperkanoon.com/case/amp/855494/paltu-dutta-vs-s-m-nibedita-roy'
$ctype = ' High Court'
$caseref = 'Hastings Mills Ltd. v. Hira Singh<br>'
$content = array(
	(int) 0 => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.',
	(int) 1 => '<p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.',
	(int) 2 => '<p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.',
	(int) 3 => '<p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,',
	(int) 4 => '<p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.',
	(int) 5 => '<p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.',
	(int) 6 => '<p>The Code of Civil Procedure (West Bengal',
	(int) 7 => '<p>Amendment) Act, 1988',
	(int) 8 => '<p>West Bengal Act XV of 1988',
	(int) 9 => '<p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.',
	(int) 10 => '<p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.',
	(int) 11 => '<p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.',
	(int) 12 => '<p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--',
	(int) 13 => '<p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-',
	(int) 14 => '<p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.',
	(int) 15 => '<p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.',
	(int) 16 => '<p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--',
	(int) 17 => '<p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.',
	(int) 18 => '<p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.',
	(int) 19 => '<p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.',
	(int) 20 => '<p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.',
	(int) 21 => '<p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' ',
	(int) 22 => '<p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .',
	(int) 23 => '<p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.',
	(int) 24 => '<p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.',
	(int) 25 => '<p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.',
	(int) 26 => '<p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.',
	(int) 27 => '<p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.',
	(int) 28 => '<p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.',
	(int) 29 => '<p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.',
	(int) 30 => '<p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.',
	(int) 31 => '<p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.',
	(int) 32 => '<p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.',
	(int) 33 => '<p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.',
	(int) 34 => '<p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.',
	(int) 35 => '<p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.',
	(int) 36 => '<p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.',
	(int) 37 => '<p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.',
	(int) 38 => '<p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.',
	(int) 39 => '<p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.',
	(int) 40 => '<p>24. Order accordingly.<p>',
	(int) 41 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 42
$i = (int) 37
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
Code Context
                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '855494',
			'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
			'appealno' => 'C.O. No. 2048 of 1989',
			'appellant' => 'Paltu Dutta',
			'authreffered' => '',
			'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
			'citingcases' => '',
			'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
			'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1989-09-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Amulya Kumar Nandi, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p style="text-align: justify;">2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p style="text-align: justify;">3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p style="text-align: justify;">4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p style="text-align: justify;">5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p style="text-align: justify;">6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p style="text-align: justify;">The Code of Civil Procedure (West Bengal</p><p style="text-align: justify;">Amendment) Act, 1988</p><p style="text-align: justify;">West Bengal Act XV of 1988</p><p style="text-align: justify;">Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p style="text-align: justify;">An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p style="text-align: justify;">Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p style="text-align: justify;">It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p style="text-align: justify;">1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p style="text-align: justify;"> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p style="text-align: justify;"> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p style="text-align: justify;"> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p style="text-align: justify;"> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p style="text-align: justify;"> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p style="text-align: justify;"> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p style="text-align: justify;"> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p style="text-align: justify;"> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p style="text-align: justify;">7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p style="text-align: justify;">8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p style="text-align: justify;">9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p style="text-align: justify;">10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p style="text-align: justify;">11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p style="text-align: justify;">12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p style="text-align: justify;">13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p style="text-align: justify;">14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p style="text-align: justify;">14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p style="text-align: justify;">15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p style="text-align: justify;">16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p style="text-align: justify;">17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p style="text-align: justify;">18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p style="text-align: justify;">19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p style="text-align: justify;">20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p style="text-align: justify;">21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p style="text-align: justify;">22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p style="text-align: justify;">23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p style="text-align: justify;">24. Order accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1990Cal262,94CWN1',
			'ratiodecidendi' => '',
			'respondent' => 'S.M. Nibedita Roy',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'paltu-dutta-vs-s-m-nibedita-roy',
	'args' => array(
		(int) 0 => '855494',
		(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
	)
)
$title_for_layout = 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '855494',
		'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
		'appealno' => 'C.O. No. 2048 of 1989',
		'appellant' => 'Paltu Dutta',
		'authreffered' => '',
		'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
		'citingcases' => '',
		'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
		'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1989-09-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Amulya Kumar Nandi, J.',
		'judgement' => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p>The Code of Civil Procedure (West Bengal</p><p>Amendment) Act, 1988</p><p>West Bengal Act XV of 1988</p><p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p>24. Order accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1990Cal262,94CWN1',
		'ratiodecidendi' => '',
		'respondent' => 'S.M. Nibedita Roy',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'paltu-dutta-vs-s-m-nibedita-roy'
$args = array(
	(int) 0 => '855494',
	(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
)
$url = 'https://sooperkanoon.com/case/amp/855494/paltu-dutta-vs-s-m-nibedita-roy'
$ctype = ' High Court'
$caseref = 'Hastings Mills Ltd. v. Hira Singh<br>'
$content = array(
	(int) 0 => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.',
	(int) 1 => '<p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.',
	(int) 2 => '<p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.',
	(int) 3 => '<p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,',
	(int) 4 => '<p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.',
	(int) 5 => '<p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.',
	(int) 6 => '<p>The Code of Civil Procedure (West Bengal',
	(int) 7 => '<p>Amendment) Act, 1988',
	(int) 8 => '<p>West Bengal Act XV of 1988',
	(int) 9 => '<p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.',
	(int) 10 => '<p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.',
	(int) 11 => '<p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.',
	(int) 12 => '<p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--',
	(int) 13 => '<p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-',
	(int) 14 => '<p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.',
	(int) 15 => '<p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.',
	(int) 16 => '<p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--',
	(int) 17 => '<p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.',
	(int) 18 => '<p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.',
	(int) 19 => '<p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.',
	(int) 20 => '<p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.',
	(int) 21 => '<p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' ',
	(int) 22 => '<p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .',
	(int) 23 => '<p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.',
	(int) 24 => '<p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.',
	(int) 25 => '<p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.',
	(int) 26 => '<p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.',
	(int) 27 => '<p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.',
	(int) 28 => '<p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.',
	(int) 29 => '<p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.',
	(int) 30 => '<p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.',
	(int) 31 => '<p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.',
	(int) 32 => '<p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.',
	(int) 33 => '<p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.',
	(int) 34 => '<p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.',
	(int) 35 => '<p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.',
	(int) 36 => '<p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.',
	(int) 37 => '<p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.',
	(int) 38 => '<p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.',
	(int) 39 => '<p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.',
	(int) 40 => '<p>24. Order accordingly.<p>',
	(int) 41 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 42
$i = (int) 38
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
Code Context
                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '855494',
			'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
			'appealno' => 'C.O. No. 2048 of 1989',
			'appellant' => 'Paltu Dutta',
			'authreffered' => '',
			'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
			'citingcases' => '',
			'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
			'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1989-09-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Amulya Kumar Nandi, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p style="text-align: justify;">2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p style="text-align: justify;">3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p style="text-align: justify;">4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p style="text-align: justify;">5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p style="text-align: justify;">6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p style="text-align: justify;">The Code of Civil Procedure (West Bengal</p><p style="text-align: justify;">Amendment) Act, 1988</p><p style="text-align: justify;">West Bengal Act XV of 1988</p><p style="text-align: justify;">Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p style="text-align: justify;">An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p style="text-align: justify;">Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p style="text-align: justify;">It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p style="text-align: justify;">1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p style="text-align: justify;"> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p style="text-align: justify;"> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p style="text-align: justify;"> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p style="text-align: justify;"> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p style="text-align: justify;"> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p style="text-align: justify;"> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p style="text-align: justify;"> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p style="text-align: justify;"> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p style="text-align: justify;">7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p style="text-align: justify;">8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p style="text-align: justify;">9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p style="text-align: justify;">10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p style="text-align: justify;">11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p style="text-align: justify;">12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p style="text-align: justify;">13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p style="text-align: justify;">14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p style="text-align: justify;">14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p style="text-align: justify;">15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p style="text-align: justify;">16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p style="text-align: justify;">17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p style="text-align: justify;">18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p style="text-align: justify;">19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p style="text-align: justify;">20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p style="text-align: justify;">21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p style="text-align: justify;">22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p style="text-align: justify;">23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p style="text-align: justify;">24. Order accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1990Cal262,94CWN1',
			'ratiodecidendi' => '',
			'respondent' => 'S.M. Nibedita Roy',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'paltu-dutta-vs-s-m-nibedita-roy',
	'args' => array(
		(int) 0 => '855494',
		(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
	)
)
$title_for_layout = 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '855494',
		'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
		'appealno' => 'C.O. No. 2048 of 1989',
		'appellant' => 'Paltu Dutta',
		'authreffered' => '',
		'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
		'citingcases' => '',
		'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
		'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1989-09-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Amulya Kumar Nandi, J.',
		'judgement' => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p>The Code of Civil Procedure (West Bengal</p><p>Amendment) Act, 1988</p><p>West Bengal Act XV of 1988</p><p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p>24. Order accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1990Cal262,94CWN1',
		'ratiodecidendi' => '',
		'respondent' => 'S.M. Nibedita Roy',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'paltu-dutta-vs-s-m-nibedita-roy'
$args = array(
	(int) 0 => '855494',
	(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
)
$url = 'https://sooperkanoon.com/case/amp/855494/paltu-dutta-vs-s-m-nibedita-roy'
$ctype = ' High Court'
$caseref = 'Hastings Mills Ltd. v. Hira Singh<br>'
$content = array(
	(int) 0 => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.',
	(int) 1 => '<p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.',
	(int) 2 => '<p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.',
	(int) 3 => '<p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,',
	(int) 4 => '<p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.',
	(int) 5 => '<p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.',
	(int) 6 => '<p>The Code of Civil Procedure (West Bengal',
	(int) 7 => '<p>Amendment) Act, 1988',
	(int) 8 => '<p>West Bengal Act XV of 1988',
	(int) 9 => '<p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.',
	(int) 10 => '<p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.',
	(int) 11 => '<p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.',
	(int) 12 => '<p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--',
	(int) 13 => '<p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-',
	(int) 14 => '<p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.',
	(int) 15 => '<p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.',
	(int) 16 => '<p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--',
	(int) 17 => '<p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.',
	(int) 18 => '<p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.',
	(int) 19 => '<p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.',
	(int) 20 => '<p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.',
	(int) 21 => '<p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' ',
	(int) 22 => '<p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .',
	(int) 23 => '<p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.',
	(int) 24 => '<p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.',
	(int) 25 => '<p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.',
	(int) 26 => '<p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.',
	(int) 27 => '<p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.',
	(int) 28 => '<p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.',
	(int) 29 => '<p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.',
	(int) 30 => '<p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.',
	(int) 31 => '<p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.',
	(int) 32 => '<p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.',
	(int) 33 => '<p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.',
	(int) 34 => '<p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.',
	(int) 35 => '<p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.',
	(int) 36 => '<p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.',
	(int) 37 => '<p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.',
	(int) 38 => '<p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.',
	(int) 39 => '<p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.',
	(int) 40 => '<p>24. Order accordingly.<p>',
	(int) 41 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 42
$i = (int) 39
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
Code Context
                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '855494',
			'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
			'appealno' => 'C.O. No. 2048 of 1989',
			'appellant' => 'Paltu Dutta',
			'authreffered' => '',
			'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
			'citingcases' => '',
			'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
			'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1989-09-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Amulya Kumar Nandi, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p style="text-align: justify;">2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p style="text-align: justify;">3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p style="text-align: justify;">4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p style="text-align: justify;">5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p style="text-align: justify;">6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p style="text-align: justify;">The Code of Civil Procedure (West Bengal</p><p style="text-align: justify;">Amendment) Act, 1988</p><p style="text-align: justify;">West Bengal Act XV of 1988</p><p style="text-align: justify;">Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p style="text-align: justify;">An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p style="text-align: justify;">Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p style="text-align: justify;">It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p style="text-align: justify;">1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p style="text-align: justify;"> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p style="text-align: justify;"> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p style="text-align: justify;"> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p style="text-align: justify;"> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p style="text-align: justify;"> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p style="text-align: justify;"> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p style="text-align: justify;"> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p style="text-align: justify;"> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p style="text-align: justify;">7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p style="text-align: justify;">8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p style="text-align: justify;">9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p style="text-align: justify;">10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p style="text-align: justify;">11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p style="text-align: justify;">12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p style="text-align: justify;">13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p style="text-align: justify;">14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p style="text-align: justify;">14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p style="text-align: justify;">15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p style="text-align: justify;">16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p style="text-align: justify;">17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p style="text-align: justify;">18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p style="text-align: justify;">19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p style="text-align: justify;">20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p style="text-align: justify;">21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p style="text-align: justify;">22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p style="text-align: justify;">23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p style="text-align: justify;">24. Order accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1990Cal262,94CWN1',
			'ratiodecidendi' => '',
			'respondent' => 'S.M. Nibedita Roy',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'paltu-dutta-vs-s-m-nibedita-roy',
	'args' => array(
		(int) 0 => '855494',
		(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
	)
)
$title_for_layout = 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '855494',
		'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
		'appealno' => 'C.O. No. 2048 of 1989',
		'appellant' => 'Paltu Dutta',
		'authreffered' => '',
		'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
		'citingcases' => '',
		'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
		'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1989-09-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Amulya Kumar Nandi, J.',
		'judgement' => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p>The Code of Civil Procedure (West Bengal</p><p>Amendment) Act, 1988</p><p>West Bengal Act XV of 1988</p><p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p>24. Order accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1990Cal262,94CWN1',
		'ratiodecidendi' => '',
		'respondent' => 'S.M. Nibedita Roy',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'paltu-dutta-vs-s-m-nibedita-roy'
$args = array(
	(int) 0 => '855494',
	(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
)
$url = 'https://sooperkanoon.com/case/amp/855494/paltu-dutta-vs-s-m-nibedita-roy'
$ctype = ' High Court'
$caseref = 'Hastings Mills Ltd. v. Hira Singh<br>'
$content = array(
	(int) 0 => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.',
	(int) 1 => '<p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.',
	(int) 2 => '<p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.',
	(int) 3 => '<p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,',
	(int) 4 => '<p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.',
	(int) 5 => '<p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.',
	(int) 6 => '<p>The Code of Civil Procedure (West Bengal',
	(int) 7 => '<p>Amendment) Act, 1988',
	(int) 8 => '<p>West Bengal Act XV of 1988',
	(int) 9 => '<p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.',
	(int) 10 => '<p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.',
	(int) 11 => '<p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.',
	(int) 12 => '<p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--',
	(int) 13 => '<p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-',
	(int) 14 => '<p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.',
	(int) 15 => '<p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.',
	(int) 16 => '<p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--',
	(int) 17 => '<p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.',
	(int) 18 => '<p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.',
	(int) 19 => '<p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.',
	(int) 20 => '<p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.',
	(int) 21 => '<p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' ',
	(int) 22 => '<p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .',
	(int) 23 => '<p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.',
	(int) 24 => '<p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.',
	(int) 25 => '<p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.',
	(int) 26 => '<p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.',
	(int) 27 => '<p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.',
	(int) 28 => '<p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.',
	(int) 29 => '<p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.',
	(int) 30 => '<p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.',
	(int) 31 => '<p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.',
	(int) 32 => '<p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.',
	(int) 33 => '<p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.',
	(int) 34 => '<p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.',
	(int) 35 => '<p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.',
	(int) 36 => '<p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.',
	(int) 37 => '<p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.',
	(int) 38 => '<p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.',
	(int) 39 => '<p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.',
	(int) 40 => '<p>24. Order accordingly.<p>',
	(int) 41 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 42
$i = (int) 40
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

24. Order accordingly.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
Code Context
                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '855494',
			'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
			'appealno' => 'C.O. No. 2048 of 1989',
			'appellant' => 'Paltu Dutta',
			'authreffered' => '',
			'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
			'citingcases' => '',
			'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
			'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1989-09-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Amulya Kumar Nandi, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p style="text-align: justify;">2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p style="text-align: justify;">3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p style="text-align: justify;">4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p style="text-align: justify;">5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p style="text-align: justify;">6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p style="text-align: justify;">The Code of Civil Procedure (West Bengal</p><p style="text-align: justify;">Amendment) Act, 1988</p><p style="text-align: justify;">West Bengal Act XV of 1988</p><p style="text-align: justify;">Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p style="text-align: justify;">An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p style="text-align: justify;">Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p style="text-align: justify;">It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p style="text-align: justify;">1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p style="text-align: justify;"> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p style="text-align: justify;"> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p style="text-align: justify;"> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p style="text-align: justify;"> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p style="text-align: justify;"> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p style="text-align: justify;"> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p style="text-align: justify;"> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p style="text-align: justify;"> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p style="text-align: justify;">7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p style="text-align: justify;">8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p style="text-align: justify;">9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p style="text-align: justify;">10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p style="text-align: justify;">11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p style="text-align: justify;">12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p style="text-align: justify;">13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p style="text-align: justify;">14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p style="text-align: justify;">14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p style="text-align: justify;">15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p style="text-align: justify;">16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p style="text-align: justify;">17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p style="text-align: justify;">18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p style="text-align: justify;">19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p style="text-align: justify;">20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p style="text-align: justify;">21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p style="text-align: justify;">22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p style="text-align: justify;">23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p style="text-align: justify;">24. Order accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1990Cal262,94CWN1',
			'ratiodecidendi' => '',
			'respondent' => 'S.M. Nibedita Roy',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'paltu-dutta-vs-s-m-nibedita-roy',
	'args' => array(
		(int) 0 => '855494',
		(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
	)
)
$title_for_layout = 'Paltu Dutta Vs S M Nibedita Roy - Citation 855494 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '855494',
		'acts' => 'Code of Civil Procedure (CPC), 1908 Sections 24, 47, 115A, 115-A(3) and (4), 397, 397(2), 437, 438 and 482 - Order 1, Rule 10;; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 227 and 228;; West Bengal (Amendment) Act, 1988;; Bombay Taluqdari Tenure Abolition Act, 1949 - Section 12;',
		'appealno' => 'C.O. No. 2048 of 1989',
		'appellant' => 'Paltu Dutta',
		'authreffered' => '',
		'casename' => 'Paltu Dutta Vs. S.M. Nibedita Roy',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Hastings Mills Ltd. v. Hira Singh;',
		'citingcases' => '',
		'counselplain' => ' Abhijit Banerjee as amicus curiae, ;Mihir Kumar Roy, ;Asoke Kumar Mukherjee, ;Miss. Rita Dutta, ;Gopal Mukherjee, ;Asoke Banerjee and ;Bijit Mitra, Advs.',
		'counseldef' => ' Mukul Parkas Banerjee, ;Sanat Kumar Seal, ;Miss Tansuri Chandra and ;Md. Nizamuddin, Advs.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1989-09-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Amulya Kumar Nandi, J.',
		'judgement' => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.</p><p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.</p><p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.</p><p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,</p><p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.</p><p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.</p><p>The Code of Civil Procedure (West Bengal</p><p>Amendment) Act, 1988</p><p>West Bengal Act XV of 1988</p><p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.</p><p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.</p><p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.</p><p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--</p><p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-</p><p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.</p><p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.</p><p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--</p><p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.</p><p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.</p><p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.</p><p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.</p><p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' </p><p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .</p><p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.</p><p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.</p><p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.</p><p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.</p><p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.</p><p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.</p><p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.</p><p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.</p><p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.</p><p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.</p><p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.</p><p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.</p><p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.</p><p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.</p><p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.</p><p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.</p><p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.</p><p>24. Order accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1990Cal262,94CWN1',
		'ratiodecidendi' => '',
		'respondent' => 'S.M. Nibedita Roy',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'paltu-dutta-vs-s-m-nibedita-roy'
$args = array(
	(int) 0 => '855494',
	(int) 1 => 'paltu-dutta-vs-s-m-nibedita-roy'
)
$url = 'https://sooperkanoon.com/case/amp/855494/paltu-dutta-vs-s-m-nibedita-roy'
$ctype = ' High Court'
$caseref = 'Hastings Mills Ltd. v. Hira Singh<br>'
$content = array(
	(int) 0 => 'ORDER<p>1. This revision has been preferred against the judgment and order dt. 26-7-89 passed by Additional District Judge, 6th Court, Alipore and order Nos.81 and 82 dated 23-6-89 passed in Title Execution Case No. 11 of 1981 by the 1st Additional Court of Munsif, Alipore.',
	(int) 1 => '<p>2. The petitioner filed a petition under O.1 R. 10 C.P.C. for addition as a party judgment debtor in Title Execution Case No. 11 of 1981 pending before the Munsif and filed another petition of objection against the execution of the decree under. S. 47 C.P.C. The executing court rejected the petition under S. 47 C.P.C. It further held that thepetition under S. 47 C.P.C. and the prayer for staying the execution petition can no more survive the rejection of the petition under O. 1 R. 10 C.P.C.',
	(int) 2 => '<p>3. The petitioner moved in revision under S. 115A C.P.C. which has been incorporated in the body of the Code by West Bengal Act XV of 1988: The Additional District Judge in revision upheld the decision of the Munsif that the petition under O. 1 R. 10 C.P.C. had been correctly rejected. But in rejecting the revisional application he made no observation with respect to the Munsifs order rejecting the application under S. 47 C.P.C. Presumably according with the learned Munsif that since the petitioner could not figure as a party judgment debtor the objection under S. 47 C.P.C. was not maintainable.',
	(int) 3 => '<p>4. Now the petitioner seeks his refuge under Art. 227 of the Constitution,',
	(int) 4 => '<p>5. The opposite party raises a prelminary objection. According to him, once the remedy in revision is exhausted a further revision under Art. 227 of the Constitution does not lie in view of the clear legislative prohibition contained in section 115A (4) of Civil Procedure Code (hereinafter called the Code). It is further submitted that the petitioner cannot be allowed to circumvent the bar under S. 115A(4) in view of a clear bar under S. 115A(3) of the Code. Incidentally he has raised some other points to substantiate his objections which I propose to deal with hereinbelow.',
	(int) 5 => '<p>6. S. 115A of the Code has been incorporated in the statute by 'the code of civil procedure (West Bengal Amendment) Act, 1988 (West Bengal Act XV of 1988). The provision is reproduced below.',
	(int) 6 => '<p>The Code of Civil Procedure (West Bengal',
	(int) 7 => '<p>Amendment) Act, 1988',
	(int) 8 => '<p>West Bengal Act XV of 1988',
	(int) 9 => '<p>Published in the Calcutta Gazette, Extraordinary, Part III, No. 524 dt. 5th Nov. 1988.',
	(int) 10 => '<p>An Act to amend the Code of Civil Procedure 1908 in its application to West Bengal.',
	(int) 11 => '<p>Whereas it is expedient to amend the Code of Civil Procedure, 1908 (5 of 1908) in its application to West Bengal, for the purpose and in the manner hereinafter appearing.',
	(int) 12 => '<p>It is hereby enacted in the Thirty ninth Year of the Republic of India by the Legislature of West Bengal as follows :--',
	(int) 13 => '<p>1. Short title and commencement.-- (1) This Act may be called the Code of Civil Procedure (West Bengal Amendment) Act, 1988-',
	(int) 14 => '<p> (2) It shall come into force on such date as the State Government may, by notification in the Official Gezette, appoint.',
	(int) 15 => '<p> 2. Application of the Act -- The-Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act) shall in its application to West Bengal, be amended for the purpose and in the manner hereinafter provided.',
	(int) 16 => '<p> 3. Insertion of new Section 115A in Act 5 of 1908.-- In Part VIII of the principal Act, after Section 115, the following section shall be inserted :--',
	(int) 17 => '<p> 115A. 'District Court's powers of revision (1) A District Court may exercise all or any of the power which may be exercised by the High Court under S. 115.',
	(int) 18 => '<p> (2) Where any proceeding by way of revision is commenced before a District Court in pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so far as may be, apply to such proceeding and references in the said section to the High Court shall be construed as references to the District Court.',
	(int) 19 => '<p> (3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.',
	(int) 20 => '<p> (4) If any application for revision has been made by any party either to the High Court under Section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.',
	(int) 21 => '<p> (5) A court of an Additional Judge shallhave and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court.' ',
	(int) 22 => '<p>7. A party once choosing the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. S. 115A(4) clearly operates as a bar to such a recourse. The petitioner cannot overcome the bar on the ground that he would in that event press his petition to challenge the decision of the Additional Judge only. Supreme Court repelled such argument in Jagir Singh v. Ranbir Singh : 1979CriLJ318 .',
	(int) 23 => '<p>8. The petitioner contends that he does not invoke the revisional jurisdiction of the High Court. And the extraordinary jurisdiction of the High Court is not barred, he submits. My attention is invited to the provision in section 115A(3) of the Code by the opposite party. Much stress has been laid upon the expression 'no further proceeding by way of revision.' It is urged that a second revision by invoking the jurisdiction of the High Court under Art. 227 is impermissible. In support of the contention reliance is placed upon the decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Datta-traya : [1970]1SCR322 . Referring to two jurisdictions of the High Court, one revisional jurisdiction under S. 115 of the Code and another superintending jurisdiction under Art. 227 of the Constitution, the Supreme Court held 'if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court.' In short a party cannot invoke two jurisdictions of the High Court consecutively nor possibly simultaneously. He has to choose one and leave another. Another reason which weighed with the Hon'ble Judges is that the order of the appellate court became merged with the order made in revision by the High Court. Therefore the High Court cannot exercise its power of superintendence over itself. The superin-tending power cannot be exercised even by a Division Bench though the revision was disposed of by a single Judge of the High Court. Power of superintendence can be exercised upon subordinate court. A single Judge is not subordinate to a Division Bench. It has been so held by the Supreme court in Durga Prasad v. Banaras Bank Ltd. : [1964]1SCR475 while pointing out the distinction between a 'subordinate court' and a 'court below'. In any event therefore a petition under Art. 227 of the Constitution was not maintainable once the High Court had rejected the revision under S. 115 of the Code. The decision is no authority to the proposition that a petition under Art. 227 of the Constitution is not maintainable to challenge the order of the Additional District Judge in revision or as a matter of that the order of the Munsif.',
	(int) 24 => '<p>9. It is argued that the decision of the Supreme Court in Shankar Ramchandra's case : [1970]1SCR322 (supra) nevertheless will apply since the District Judge while exercising his power under S. 115A is so doing in exercise of the delegated authority of the High Court. I am afraid I cannot reconcile myself with this argument of Mr. Banerjee. Exercise of concurrent power can by no means be construed as an exercise of delegated power. Exercise of concurrent power will be found in Ss. 397, 437 and 438 of the Code of Criminal Procedure and in S. 24 of the Civil Procedure Code. This court had occasion to deal with such concurrent power in Diptendu Nayek v. State of West Bengal (1988) 2 Cal HN 368. The Special Bench was invited to decide whether the High Court can exercise a power which has been exercised by the Sessions Judge or the District Judge while the statute confers concurrent power. The question was answered in the affirmative. And the reason is obvious. They enjoy the power independent of each other. Once a delegated power is exercised the principal can no more be invited to exercise the power over again. The argument on this score therefore fails.',
	(int) 25 => '<p>10. Much reliance has been placed upon Section 115A(3) of the Code to argue that the said provision has taken away the right of the party to take recourse to Art. 227 of theConstitution once he has exhausted his remedy under S. 115A of the Code.',
	(int) 26 => '<p>11. Can a State legislature take away a citizen's right under Art. 227 conferred upon by <a>Constitution of India</a>? In defining the basic structure of the Constitution the Supreme Court in Keshavananda v. State of Kerala reaffairmed the supremacy of the Constitution : AIR1973SC1461 . No legislation and far less a State legislation can forfeit, limit, curtail, enlarge, abridge the power under Art. 227 of the Constitution. By ordinary process of legislation the union legislature even cannot do it. The Supreme Court in Umaji Keshao Meshram. v. Radhikabai : [1986]1SCR731 has very lucidly answered the point. It says that a law made by an appropriate legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Arts. 226, 227 and 228 are not made subject to any law made by Parliament or State Legislature, the powers conferred by these three articles cannot be limited, abridged or taken away by any legislature. They can only be affected by amending the Constitution. These observations unmistakably reiterate the supremacy of the Constitution and immutability of the writs by process of legislation. Therefore the provision under S. 115A(3) of the Code cannot affect the superintending power of the High Court under Art. 227 of the Constitution. I refrain from opining that the said provision in the Code is bad and invalid so far as it is repugnant to the Constitution.',
	(int) 27 => '<p>12. It is argued that we cannot overlook that S. 115A of the Code received President's assent. But it cannot thereby affect the Constitution. While the Parliament cannot in the ordinary process of legislation amend far less the State legislation can.',
	(int) 28 => '<p>13. What is sought to be impressed upon me is that a revisional order cannot be subjected to further revision by the High Court or once the party has preferred a revision and lost, Art. 227 of the Constitution cannot be invoked, In support of this argument reliance is placed upon Md. Ataur Rahaman v. Nityananda Das 1979 Cri LJ1498. Gauhati High Court relied upon the Supreme Court decision in Jagir Singh v. Ranbir Singh : 1979CriLJ318 . We have to go through the Supreme Court decision very carefully to see whether the Supreme Court propounds such a theory. Supreme Court laid down that where the Criminal Procedure Code itself barred the exercise of revisional powers of the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution. Supreme Court while considering whether the bar under Sec. 397(2) of the Code of Criminal Procedure will operate against exercise of inherent power under Sec. 482 of the Criminal Procedure Code, answered the question in the negative in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . It, however, observed 'but such cases would be very few and far between. The High Court must exercise the inherent power very sparingly'. Similar view was expressed in Raj Kapoor v. State : 1980CriLJ202 . In Chandrasekhar Singh v. Siya Ram Singh : 1979CriLJ13 Supreme Court opined that the power under Art. 227 of the Constitution could not be curtailed by any provisions of the Code of Criminal Procedure.',
	(int) 29 => '<p>14. As a matter of fact the power of superintendence under Art. 227 of the Constitution is all pervasive. In State of Gujarat v. Vakaht Singhji : [1968]3SCR692 Supreme Court overruled the contention that Sec. 12 of the Bombay Taluqdari Tenure Abolition Act (62 of 1949) makes the decision of the tribunal final and conclusive and the High Court cannot interfere while propounding the all pervasive authority of the High Court under Art. 227 of the Constitution. The Supreme Court went so far as to interfere with the revisional order of the Tribunal which refused to revise the appellate order of the Additional Collector and the decision of the Tahasildar. Concurrent decision of three authorities below was overruled. So the authority under Art. 227 of the Constitution knows no bound. The self-restraint is the only limitation.',
	(int) 30 => '<p>14A. The scope of authority under Art. 227 of the Constitution has been very carefully laid down in Jagdishlal Dhody v. State of M.P. : AIR1988MP4 . Theobservation in Indian Pan Works v. Chief Commissioner, Delhi was relied upon. It was held where the cause of justice is seriously jeopardised the exercise of power under Art. 227 may take the shape of constitutional obligation. Reliance was also placed upon Marwa Mangnari v. Sanghram Sampat in para 30 of the Madhya Pradesh case. It was held that the constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statute in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the court is invested with unlimited and unfathomable reserve of judicial power of supervision under Art. 227 of the Constitution.',
	(int) 31 => '<p>15. To hold that the impugned order of the Additional District Judge cannot be interfered with under Art. 227 of the Constitution on the ground that a second revision is being sought for in the guise of exercise of power of superintendence is to conclude that the revisional order of the District Court is not open to scrutiny by the High Court under Art. 227 of the Constitution. Therefore the subordinate revisional court is immune from the superintending jurisdiction of the High Court. It is a very hard nut to swallow.',
	(int) 32 => '<p>16. In Umaji's case : [1986]1SCR731 (supra) the Supreme Court laid down that under Art. 227 however what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority or according to law. So it cannot be said that the -revisional order of a subordinate court under Sec. 115A of the Code cannot be subjected to the superintending jurisdiction of the High Court.',
	(int) 33 => '<p>17. Supreme Court sounds a note of caution in Umaji's case : [1986]1SCR731 (supra) in tune with similar warning given in some earlier decisions. It is held that the power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals withint the bounds of their authority and not for correcting mere errors. In our situation the principle laid down by the Supreme Court should be followed more rigidly. The state legislature did not desire a second revision as is reflected from the provision in S. 115A of the Code. Theefore High Court will not surely act as a second court of revision while exiercising power of superintendence. It will only interfere in the case of manifestly gross injustice, abuse of the process of the court or similar other extraordinary situation. Once remedy under S. 115A is exhausted High Court will interfere under Art. 227 of the Constitution only in rarest of rare cases.',
	(int) 34 => '<p>18. Does the present situation call for interference under Art 227 of the Constitution? The opposite party obtained a decree for eviction against one Sudhanshu Kumar Bosein Title Suit NO. 473 of 1976 in the third court of Munsif, Alipore. In the said suit the petitioner, the alleged sub-tenant, was not a party. Nevertheless the petitioner in pursuance of the leave granted by the High Court preferred an appeal being Title Appeal No. 1103 of 1980 against the decree of ejectment. The petitioner lost both in firest appeal and also in second appeal. Thereafter the petitioner filed an objection under S. 47 C.P.C and prayed for stay of the execution case. The prayer for stay having been dismissed the petitioner moved in revision. Samir Mukherjee J. in Civil Order No. 2664 of 1986 by a well reasoned order and on very weighty consideration refused to interfere with the order of the learned Munsift who refused to grant stay of the execution case pending dispoal of the objection under S. 47 of the Code. Thereafter the wife of the petitioner came in revision before this Court Susanta Chatterjee, J. rejected the petition in civil order No. 2503 of 1987.',
	(int) 35 => '<p>19. The petitioner thereafter filed a petition under O. 1 R. 10 of the Code. Both the courts below rejected the petition and consequently held that petition under S. 47 of the Code was not maintainable. In my opinion the petition under O. 1 R. 10 C.P.C. was misconceived. While the petitioner was allowed to prefer an appeal against the judgment and decree of eviction granted against Sudhanshu the petitioner very much became the judgment-debtor since the judgment of the two appellate courts were binding upon him. Therefore his petition under Sec. 47 C.P.C. was very much maintainable and to maintain such petition an application under O. 1 R. 10 of the Code wasnot necessary. So a gross error was committed by both the courts below resulting in manifest injustice to the petitioner who was not allowed to press his objection under Sec. 47 of the Code.',
	(int) 36 => '<p>20. Mr. Banerjee appearing for the opposite party relied upon the decision in Hastings Mills Ltd. v. Hira Singh (1977) 2 Cal LJ 391 : (1978 Cri LJ 560) to contend that the petitioner by resorting to various proceedings by himself and through his wife has abused the process of the court and thereby disentitled himself to the protection under Art. 227 of the Constitution. It is submitted that despite the gross error by the two couts below High Court will refuse to interefere with the impugned order. It is further submitted that the petitioner has deliberately suppressed the material facts. It has not been disclosed that Samir Mukherjee, J. has passed an order against him and Susanta Chatterjee, J. against his wife. It is submitted that for this reason also he has forfeited his right of any assistance from his court. The argument is very weighty undoubtedly. Nevertheless I am unable to accede to the prayer of the opposite party. The error is so very patent and gross that I cannot but interefere.',
	(int) 37 => '<p>21. But I refuse to stay the execution for reasons assigned by my learned brother Samir Mukherjee, J. in Civil Order No. 2664 of 1986 I have already pointed out that he refused to interfere with the order of refusal to stay despite pendency of the objection under S. 47 C.P.C. I am unable to differ from him in this behalf.',
	(int) 38 => '<p>22. The order of the two courts below refusing to entertain and hear objection under Sec. 47 of the Code is set aside. The Munsif is directed to hear out the objection of the petitioner within seven days from the date of receipt of a copy of this order. He will grant no adjournment in the matter. If the court is vacant the learned District Judge will cause hearing of the application by the officer in charge of the court within the time specified. Let a copy of the order go down to the two courts below forthwith.',
	(int) 39 => '<p>23. In conclusion I may record my appreciation for the assistance rendered by the counsel of the contending parties and some members of the Bar who on their own came forward to assist me.',
	(int) 40 => '<p>24. Order accordingly.<p>',
	(int) 41 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 42
$i = (int) 41
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109