CASE NO.: Appeal (crl.) 1082 of 2005 PETITIONER: <NAME> RESPONDENT: Secretary M/O Defence & Ors DATE OF JUDGMENT: 18/05/2007 BENCH: <NAME> & <NAME> JUDGMENT:

J U D G M E N T S.B. Sinha, J :

1. Interpretation and application of some provisions of the Army Act 1950 (hereinafter referred to as " The Act ") and Army Rules, 1954 (hereinafter referred to as "The Rules") arises for consideration in this appeal, which arises out of the judgment and order of <ORG> of <ORG> dated 4.3.2005 passed in Writ Petition (Civil) No.3442 of 1998, dismissing the writ petition filed by the appellant herein.

2. Appellant joined <ORG> on or about 18.8.1981. He is a holder of B.Sc. (Biology) degree. He has received trade training in the <ORG> as a Technician Electronic System. He passed the 54th Entrance Examination from <ORG> Cadets College from Dehra Doon in the year 1986. He secured first position in <ORG> and third position on an all India basis. In ordinary course, he would have become a Commisioned Officer upon obtaining training from <ORG> Cadet College, Dehra Doon but prior thereto he was posted to Ladakh. While posted at Leh, owing to high altitude of the place, he developed psychiatric problems. For want of necessary care, he became a psychiatry patient. He had to undergo treatments in the <ORG> Hospitals situated at Chandigarh, Allahabad, Jabalpur and Ambala.

3. In the <ORG> proceedings held on 22.4.1987, the appellant was put in medical category 'CEE' wherein it was opined :

"This 27 yrs. Old serving soldier with more than 5 yrs. of service is a case of Neurosis-onset of illness in early Jan. 1987 while serving it high altitude area.

Illness was characterised with acute onset of attacks of chest pain, giddiness, vomiting and tingling sensation all over the body, physical.

Present Condition.

Examination and relevant laboratory parameters were within normal limits. He was evaluated psychiatrically at <ORG>WC) in Chandigarh in Feb. 87.

Psychologically he was tense anxious and worried. He showed preoccupation on somatic symptoms, craved for sympathy. Exaggerated his symptoms and expressed his inability to withstand extreme cold climate and other environmental constraints, of high altitude area. He had sleep and appetite disturbances with normal insight and judgment.

He has been managed with phychotherapy and anxiolytics for which response is favourable it present a symptomatic. He is cheerful and have no overt signs of anxiety. On motivation for further service is FM SF-10 dated 10 Apr. 87 is unsatisfactory. He needs to be observed in low medical category.

Recommended to be placed in medical category CEE temporary psychological for 6/12 yrs.

To be reviewed thereafter with fresh AFMSF-10 by his O.C. Unit."

[Emphasis supplied]

4. The medical re-categorization which was to take place on or about 21.10.1987 was delayed. He continued to be on medical leave and was categorized to be in CEE category for six months. Thereafter he went on leave as a part of annual leave, but he allegedly over stayed for about 96 days. Some punishment was imposed on him by an order dated 5.12.89. He prior to joining his present posting, was posted in another unit on 20.1.1990. He was allegedly found fit to join his duties. He was again summarily tried and awarded three days' pay fine despite the fact that his medical re- categorization had not been done timely. He was admitted to <ORG> Ambala from 13.5.1990 to 7.6.1990 for medical recategorisation. He was granted casual leave for the period of 7.6.1990 to 18.6.1990 to visit his family, but he allegedly overstayed his leave again for 20 days, even though there is nothing to show as to whether he had been declared fit for joining his duties or not. There is also nothing on record to show that any action was taken against him in respect thereof but admittedly he was admitted to <ORG> Ambala for medical re-categorization. He was transferred to <ORG> (<ORG>) on 16.7.1990.

5. For his purported absence for the period from 16.7.1990 to 22.7.1991, a chargesheet was submitted which reads as under : "The accused No.14243462A Sigmn(TES) Sheel Kumar Roy of <ORG> is charged with :-

Army Act Section 39(a) ABSENTING HIMSELF WITHOUT LEAVE

In that he, at Ambala Cantt, absented himself without leave from M11, Ambala Cantt. At 1000h. on 16th July 1990 and remained so till surrendered voluntarily at <ORG> regt. (Corps of Signals) Jabalpur at 0700h on 22 Jul. 91.

Station : Ambala Cantt Dated : 3 Sep. 91. Sd/-

<NAME>

Commanding Officer 2 Corps Air Sp. Sig Unit"

6. We would deal with this aspect of the matter a little later, but we may notice that it is borne out from the record that he had again been sent to <ORG> (<ORG>) for medical re-categorization. Having been found fit, he was allegedly discharged from the Hospital on 12.8.1991upon upgrading to Medical Category 'AYE'. He was summarily tried for another misconduct and was awarded 7 days Rigorous Imprisonment and 7 days Pay fine.

7. It is further interesting to note that <ORG> was held in terms of <ORG> Rule 22 of the Rules on 3.9.1991 in regard to the alleged overstay from 16.07.1990. In its opinion <ORG> observed : "1. No.14243462 S/Man S.K. Roy of <ORG> had absconded on 16 July 90 at 1000 h from M.H. Ambala Cantt while still on their strength.

2. No.14243462 S/Man S.K. Roy has been received by this hospital on the authority of <ORG> vide their letter No.213/PC/SKR/03/X of 29 Jul 91 and admitted to this hosp. On 30 Jul 91 (FN).

3. Absence period of above patient to be regularized administratively as per existing orders by MH Ambala Cantt/2 Corps Air Sup Sig Unit.

4. o.13964654 L/NK/NA M.S. Pillai ex-MH Ambala Cantt now posted to 151 Base Hosp. Has given false statement after having duly cautioned that he had brought 3 patients where as No.14243462 S/Man S.K. Roy was absconding from MH Ambala Cantt. Disciplinary action against the individual is recommended."

[Emphasis supplied]

8. We may also put on record that, as far back as 17.5.1990, his behaviour having been found unsatisfactory, an opinion was formed that 'his mental outlook and personal habits and his behaviour in the unit being unsatisfactory' as it was recommended not to retain him in service.

9. It is really a matter of grave concern that, despite the recommendations of <ORG>, he while undergoing punishment of 7 days' Rigorous Imprisonment by the order dated 30.8.1991, the charge- sheet in question being dated 3.9.1991 was issued to the appellant by the Commanding Officer of his unit. He was tried in a Summary Court Martial proceeding held on 7.9.1991 only for an hour i.e. from 13.45 to 14.45 hrs. It is not again in dispute that the Commanding Officer himself was the Prosecutor and also the Judge. He was held guilty and sentenced to undergo six months' rigorous imprisonment and was also the punishment of dismissal from service. On Appeal, the Chief of Staff, however, by order dated 5.10.1991 remitted three months' Rigorous Imprisonment maintaining the sentence of dismissal. He made representations before the higher authorities.

10. The Writ Petition filed by the appellant, as noticed hereinbefore, has been dismissed by <ORG>. We may, however, before proceeding with matter notice that the records of <ORG> were not placed before <ORG>.

11. Ms. <NAME>, learned counsel appearing on behalf of the appellant inter alia would submit :

(i) Appellant having been suffering from mental illness and having been undergoing rigorous imprisonment for seven days on a different charge, service of the charge on him during that period as also holding of a Court Martial wherein the Commanding Officer played both the role of a prosecutor as also a Judge amount to denial of his human right as also Article 21 of the Constitution of India. No legal assistance was also provided to him and furthermore no time having been granted for preparation of his case as he was in custody, the proceeding should be treated to be an eye-wash.

(ii) Imposition of two punishments, viz., rigorous imprisonment as also dismissal from service is violative of Section 39 read with Section 71 of the Act.

(iii) Appellant having been found to be not fit for being retained in service in a medical proceedings held on 17.5.1990, quick successive convictions one for making a complaint to the Adjutant General directly and another for violation of Section 39 of the Act must be held to be wholly illegal. Charge against the appellant in regard to his alleged unauthorized absence was based on incorrect facts as from the movement order filed by the respondents themselves, it would appear that he had been admitted in <ORG>, Ambala on 11.7.1990.

(iv) Recommendations of <ORG> although noticed by the Commanding Officer himself in the Summary Court Martial Proceedings having not been taken into consideration, the said authority must be held to have misdirected itself in law. Had the recommendations been taken into consideration, the Commanding Officer would have regularized his leave and in any event he having been found to be admitted in a Medical Hospital or in a Hospital as a patient, the findings of unauthorized absence is perverse.

12. Mr. <NAME>, learned Additional Solicitor General, appearing on behalf of the respondents, on the other hand, would submit that:

(i) the appellant having been found fit for joining his services, no illegality has been committed by the Commanding Officer in awarding a punishment of six months' Rigorous Imprisonment as also dismissal from service.

(ii) Although the appellant had pleaded guilty before the Commanding Officer, he had proceeded in terms of Section 116 of the Act on the premise as if the delinquent officer had not pleaded guilty and, thus, the Summary Court Martial proceedings must be held to have been conducted in accordance with law, particularly when he had again pleaded guilty before the Commanding Officer in the said proceedings.

(iii) The contentions raised before us having not been raised before <ORG>, this Court should not entertain the same.

13. The fact that the appellant was suffering from mental illness for a long time is not in dispute. We have noticed hereinbefore that he was recommended to be placed in Medical Category CEE for six to twelve years. His medical re-categorization, however, had not been done periodically.

14. From the records produced by the respondents, it is evident that the appellant had remained in one or the other <ORG> from 8.7.1990.

15. Although he is said to have absented himself on and from 10.7.1990, it now transpires that he had been admitted at <ORG>, Ambala Cantt from 11.7.1990. This discrepancy has not been explained. <ORG> in the aforementioned situation must be presumed to have made recommendations for regularization of his leave upon consideration of the relevant records and particularly the movement orders. It is true that the opinion of <ORG> is only recommendary in nature but it is also true that the Commanding Officer in a proceeding for Summary Court Martial was required to take that fact into consideration. It is one thing to say that the recommendations of <ORG> had not been accepted but then if such recommendations had been made having regard to the materials which were brought on the records by the respondents themselves, we are of the opinion that it was obligatory on his part to assign some reasons in support thereof. It is evident that the premise on which such recommendation has been made by <ORG> was not taken into consideration in the Summary Court Martial proceeding.

16. In any event, the respondents themselves should have explained in their counter-affidavit as to why the recommendations of <ORG> were not accepted. Once it is held that for the period of the purported absence in question or a part thereof he had not been absconding but was admitted in Military Hospital, Ambala Cantt, the matter deserved a deeper scrutiny at the hands of the competent authority. The movement orders in respect of the appellant who had been described as a patient clearly shows that he was admitted in <ORG> on 11.7.1990. The movement order furthermore shows that he was also transferred to <ORG>.

17. Fairness and reasonableness in the action of the <ORG> whether in a criminal proceeding or otherwise is the hallmark of Article 14 of the Constitution of India. The doctrine of proportionality is one of the grounds on the basis whereof the power of judicial review could be exercised. It was so held in <CITATION> . 1991(3) SCC 213.

18. We may also notice that in <CITATION> . reported in 1987(4) SCC 611, this <ORG> held : "The question of the choice and quantum of punishment is within the jurisdiction and discretion of <ORG>. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of <ORG>, if the decision of the <ORG> even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review."

19. We although agree with the learned Additional Solicitor General that it is legally permissible to award more than one punishment in terms of Section 71 of the Act but we may notice that Section 39(a) specifically deals with the misconduct in respect of absence without leave. It is one thing to say that legally it is permissible to impose more than one punishments but then also it is another thing that in exercising the said power all attending situations which fell for consideration by the punishing authority in regard to the quantum thereof would not be taken into consideration. It is clear that the Commanding Officer in the Summary Court Martial proceedings failed to take into consideration the relevant fact and, thus, committed an error apparent on the face of the record. We are also of the opinion that in a case of this nature, imposition of both punishment of rigorous imprisonment for six years as also dismissal from service was wholly arbitrary in nature. It is also vitiated in law as all relevant facts were not taken into consideration.

20. The learned Additional Solicitor General took pains in explaining to us that the appellant's condition had improved and, in fact the medical category was upgraded from CEE to AYE and ultimately he was found fit for joining his duties only on 12.8.1991. The said submission, however, in our opinion, does not stand a moment's scrutiny. What was required to be taken into consideration is the conduct of the appellant for the period 16.7.1990 to 22.7.1991. It is not the case of the respondents that even during the said period, his behaviour or mental condition was such which enabled the authorities to put him on trial or his behaviour even during the said period deserved a harsh punishment, assuming he was guilty of commission of misconduct.

21. On their own showing, the respondents accepted that during his entire service career, the appellant remained a mental patient and had been undergoing his treatment in one hospital or the other. It was, therefore, obligatory on the part of the Commanding Officer to take into consideration the said fact for the purpose of arriving at a finding of his guilt on the charges of misconduct as also for fixing the quantum of punishment. It is in that limited sense, assignment of some reasons in a case of this nature must be held to be necessary. It is now a well settled legal principle which has firmly been accepted throughout the world that a person merely by joining Armed Forces does not cease to be a citizen or be deprived of his human or constitutional right. This aspect of the matter has been considered by a Division Bench of <ORG> in <CITATION> . reported in 2003(1) SLJ 151.

22. Once it is held that arbitrariness of the Commanding Officer in the matter of holding the appellant and awarding punishment upon him is apparent on the face of the record, the impugned order must be held to be wholly unsustainable.

23. We regard our inability to accept the contentions of the learned Additional Solicitor General that even in a case of this nature we would shut our eyes to the realities of case and allow gross injustice meted to a citizen of India to be perpetuated on mere technicalities.

24. Moreover, we have noticed hereinbefore that the learned counsel for the appellant stated before us that even the recommendations of <ORG> had not been produced before <ORG>. If that be so, even at that stage, the appellant did not have the advantage of a better assistance from his counsel.

25. The question, however, which arises for consideration is the relief which can be granted to the appellant. He has already undergone the sentence. He has not been working since 1991. He had also remained in <ORG> for a long time. Although, thus, it is not possible for us to grant him all the prayers made in his writ petition before <ORG>, we are of the opinion that keeping in view the peculiar facts and circumstances of this case, interest of justice would be met if it is directed that he should be deemed to have been discharged from 7.9.1991. He would, thus, be entitled to all benefits arising therefrom. The appeal is allowed in part and to the extent mentioned hereinbefore. However, in the facts and circumstances of this case, there shall be no order as to costs.


PETITIONER: UNION OF INDIA Vs. RESPONDENT: <NAME> & BROS. DATE OF JUDGMENT28/01/1971 BENCH: <NAME>, J.M. BENCH: <NAME>, J.M. VAIDYIALINGAM, C.A. CITATION: 1971 AIR 1558 1971 SCR (3) 557 CITATOR INFO : R 1978 SC1217 (25) RF 1991 SC1420 (75) ACT: Civil Courts-Jurisdiction of-Exclusion of jurisdiction-When inferred. Import Trade Control Policy-Jurisdiction of statutory authority. HEADNOTE: Under cl. 3 of the Imports (Control) Order, 1955, passed under s. 3 of the Imports and Exports (Control) Act, 1947, no person shall import any goods of the description specified in Sch. I except in accordance with a licence, and if it was found that the goods imported did not conform to the description in the licence, then, without prejudice to any action that may be taken against the licensee under the Sea Customs Act, such goods would be treated as having been imported without a valid licence in that behalf. Under Entry 294 of s. 11 of Part IV of Sch. I of the Import Trade Control Policy (July to December 1956), import of motor- cycles and scooters was permitted under an appropriate licence, but such a licence could not be used for their import in a completely knocked down (C.K.D.) condition except by approved manufacturers. That is, there was no absolute phohibition for their import in C.K.D. condition. The words completely knocked down conditions are not used in any technical sense and have the dictionary meaning of "made or constructed so as to be capable of being knocked down or taken apart as for transportation; in parts ready to be assembled". Under Entry 295, except for rubber tyres and tubes, for whose import a separate licence could be obtained, there are no limitations as to the number or kind of parts or accessories of motor cycles and scooters which can be imported under a license obtained in respect of the goods. There are no remarks against this entry as there are against Entry 294, that the licence would not be valid for import of spares and accessories which, if assembled, would make motor-cycles and scooters The respondents' licence authorised them to import goods covered by Entry 295, and they imported certain goods which arrived in two different consignments and on two different dates. They did not contain tyres, tubes and saddles so that it was impossible to say that they constituted motor cycles and scooters in C.K.D. condition. The Collector of Customs and <ORG> in appeal, however, put the two consignments together and held that trade practice did not require the supply of tyres and tubes and saddles while supplying motor cycles, and that therefore they made up mopeds in C.K.D. condition and were, for that reason, not the articles covered by Entry 295 but articles prohibited under Entry 294. The goods were directed to be confiscated with an option to the respondents to pay certain 'sums in lieu of confiscation, and personal penalties. The respondent filed a suit in <ORG> and the trial Judge dismissed it on the authority of <CITATION> .  L.R. 67 I.A. 222, and that the suit was time barred under art. 14 of the Limitation Act . 1908. In appeal, <ORG> followed <CITATION> ., a decision of that <ORG>, and allowed the appeal. In appeal to this Court, 558 HELD: (1) The mere fact that the goods imported by the respondents wereso complete that when put together would make motor-cycles and scooters in C.K.D. condition would not amount lo a breach of the licence or of entry 295. The restriction not to import motor-cycles and scooters in C.K.D. condition was against an importer holding a licence in respect of the goods covered by entry 294 under which he could import complete and assembled motor-cycles and scooters, and not against an importer who had a licence to import parts and accessories under entry 295. [565 G-H; 566 E] (2)When the Collector examines goods imported under a licence in respect of goods covered by Entry 295, what he has to ascertain is whether the goods are parts and accessories, and not whether the goods, though parts and accessories, are so comprehensive that if put together would constitute motor cycles and scooters in C.K.D. condition, because, it would then mean that there is in the entry a limitation against importation of all parts, and accessories of motor-cycles and scooters. Such an approach, would be acting contrary to and beyond entry 295, and in non- compliance of the entry and would lead to the anomalous result that even if the importer had sold away one consignment or part of it, the Collector could still say that had the importer desired it was possible for him to assemble all parts and make motor-cycles and scooters in C.K.D. condition. [566 A-C, H; 567 A-B] (3)This Court in <CITATION> ,  7 S.C.R. 62, laid down that <ORG> under Art. 226 of the Constitution, could not, on the ground that it was erroneous, interfere with the decision of the authority upon whom jurisdiction was conferred to decide the question whether the goods fell under one or other entry, that is, under which of two competing entries the goods fell. This Court also held that the import of parts of a prohibited article was import of the prohibited article, and that the importer could not be allowed to do indirectly what he could not do directly, and distinguished the case in <CITATION> 's case, it was held that the jurisdiction of the Collector was only to ascertain whether the goods were spare parts and accessories and not to find out whether if put together they would constitute auto cycles in C.K.D. condition. [567 B-C; 568 B-E] (4)In the present case also the question before the Collector was whether the respondents' licence covered the goods imported by them, that is; whether the goods were parts and accessories. It is not, therefore, one of those cases where between two competing entries the statutory authority applied one or the other and where a civil court cannot interfere even if the statutory authority committed an error., [572 C-E] (5) Exclusion of jurisdiction of Civil Courts is not to be readily inferred. Such exclusion is inferred when the statute gives finality to the order of the tribunal on which it confers jurisdiction and provides for adequate remedy to do what the courts would normally do in such a proceeding before it. Even where the statute gives finality such a provision does not exclude cases where the provisions of the particular statute have not been complied with or the tribunal has not acted in conformity with fundamental principles of judicial procedure, and a determination by a tribunal of a question other than the one which the statute directs it to decide would be a decision not under the provisions of the Act. [571 B-E] Firm illuri <CITATION> ,  1 S.C.R. 752, <CITATION> ,  3 S.C.R. 662, <NAME> v. Andhra Pradesh,  2 S.C.R. 714, Anisminic Ltd. v. Foreign Com- 559 pensation Commissioner,  1 All E.R. 208 and R. v. <NAME>, <ORG>,  2 All E.R. 4, referred to. (6)Therefore, the decision in the present case was covered by the exception laid down in <NAME> & Co.'s case and the provision excluding the jurisdiction of the civil court would not be applicable. Since non-compliance with the provisions of the Act would be acting in excess of jurisdic- tion the Collector's order was a nullity and Art. 14 of the Limitation Act , 1908, could not be applied. Even if it was applicable, the suit would not be barred if the date of the appellate order of the customs authorities was taken into consideration. [572 E-F] JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 344 of 1967. Appeal from the judgment and order dated July 8, 1966 of the, <ORG> in Appeal No. 17 of 1964. <NAME> and <NAME>, for the appellant. <NAME>, <NAME> and <NAME>, for the- respondents.

The Judgment of the Court was delivered by- <NAME>, J. This appeal, by certificate, arises from the res- pondent's suit in respect of fines and penalties recovered from them by the Collector of <ORG>, Bombay for the alleged contravention of S. 3 of the Imports and Exports (Control) Act, 1947 and. s. 167(8) of the Sea <ORG> Act, 1878.

The respondents held an import licence dated July 10, 1956 permitting them to import parts and accessories of motor cycles and scooters as per appendix XXVI of the Import Policy Book for July-December 1956. Under the said licence, the respondents, imported certain goods which arrived in two consignments, each containing 17 cases, by two different ships. According to the respondents, the goods so imported by them were motor cycle parts which their licence authorised them to import. The <ORG> authorities, on the contrary. held, on the examination of the goods, that they constituted 51 sets of "Rixe Mopeds complete in a knocked down condition". The Deputy Collector of <ORG> thereupon held an enquiry in pursuance of two show cause notices issued by him.

The result of the enquiry was an order under which the Deputy Collector directed confiscation of the said goods with 'an option to the respondents to pay certain sums in lieu of confiscation and also personal penalties. That order was passed on the basis that the goods imported were not parts and accessories of motor cycles and scooters permissible under entry 295 of the Schedule to the Import Control Order, but were motor cycles/scooters in completely knocked down condition, prohibited under remark II against entry 294, a licence in respect of goods covered by it would authorise import of motor cycles and Scooters. The order of the Deputy Collector dated November 19, 1957 reads as under:

"On examination of the goods and scrutiny of the documents relating to the Bills of Entry stated above, it was ascertained that M/s. Tarachand Gupta & Bros. had imported 51 sets of "Rixe" Mopeds complete (except tyres, tubes and saddles) in a knocked down condition. The total number of consignments covered by the aforesaid two Bills of Entry were. sufficient to give exactly 51 sets complete, Rixe 'Mopeds' (except for tyres, tubes and saddles which would in any case have required a separate licence). The packing was also such as to show that those were nothing but "Mopeds" in a disassembled condition, since each of the cases contains components relating to three mopeds. Moreover, it was found that major components such as the frames, completely fitted with electrical wires and control cables and grips had been imported in equal numbers.-All these went to show that the goods were not imported as spare parts but as complete vehicles in a knocked down condition. The goods were therefore, considered to be correctly classifiable under item 75(2) of the I.C.T. corresponding to S. No. 294, IV of the I.T.O. Schedule. The licence under which clearance was sought, could not, therefore, be accepted." The Deputy Collector rejected the respondents' contention that the two consignments which arrived in two different ships at different dates should be viewed separately, that the machines were incomplete as they were without tyres, tubes and saddles and therefore they could not be said to constitute motor cycles in knocked down condition. He held, on the other hand, that though the goods were not in completely knocked down condition it made no difference as the tyres, tubes and saddles were easily obtainable in India and their absence did not prevent the machines being otherwise complete. He also found that there was a trade practice under which traders were supplying motor cycles without tyres, tubes and saddles unless the purchaser specially asked for these parts. According to him, the goods could not be regarded as spare parts but were 'Mopeds in disassembled condition".

In the suit filed by the respondents in <ORG> against the said-order, the Trial Judge held, on the authority of the  <CITATION> .(1) that an order of a statutory tribunal, such as the Collector of <ORG> under the Sea <ORG> Act, which the statute makes final, subject, of course, to an appeal provided under it, can be set aside in a suit before a civil court on two grounds only, namely, where the provisions of the Act have not been complied with, or where the tribunal has failed to act in conformity with the fundamental rules of judicial procedure. He rejected the respondents' contention that the case fell within the first ground and held that however erroneous the Collector's decision might be since it was within his jurisdiction to decide whether the goods fell under one entry or the other, a civil court had no jurisdiction to grant relief. He also held that the order could not be said to be without or in excess of jurisdiction and was, therefore, not a nullity. The order consequently required to be set aside if the respondents were to have any relief, and therefore, Art. 14 of the Limitation Act , 1908 applied. On that basis he held the respondents' suit to be time barred and dismissed it. We may, at this stage,, mention that in 'a similar matter involving import of spare parts and accessories under a licence relating to entry 295, the Collector's order, on the basis that the goods fell under entry 294, as the spare parts in question could, it all the different indents were taken together, constituted auto cycles in completely knocked down condition, was held to be bad as "the Collector's approach to the matter was wholly wrong by a Division Bench of the same <ORG> in <CITATION> .(2) According to that judgment, the jurisdiction of the Collector was to ascertain whether the goods, such as they were, were properly imported under the licence relating to goods under entry 295, i.e., whether they were spare parts and accessories, and not to go further and find out whether they would, when put together, constitute auto cycles in completely knocked down condition as envisaged by entry 295, and therefore, the order was amenable to interference by <ORG>. The Trial Judge held, on the authority of this judgment that on merits the Collector of <ORG> was in error in holding the respondents guilty of importing goods not covered by the licence held by them and that the Collector would have been bound by that judgment had it been delivered before he passed the impugned order. He, however, was of the view that whereas <ORG> in <NAME> case(2) interfered with the order in its writ jurisdiction. a suit could not lie as the impugned order was within the jurisdiction of the Collector and the mere fact that he applied a wrong entry did not invest the civil court with the jurisdiction to entertain a suit and set aside such an order.

(1) (1940) 67 I.A. 222 (2)Civil appeal No. 4 of 1959, decided on August 17, 1960 (H.C) <ORG> of <ORG>, following the judgment in <NAME>'s case,(1) agreed with the Trial Judge that on merits the Collector was in error. Following that judgment, the Bench also, held that the Collector's jurisdiction was limited to ascertain whether or not the goods imported by the respondents were spare parts and accessories covered by entry 295 in respect of which they undoubtedly held the licence, . and therefore, he could not have lumped together the two consignments which, though imported under one licence, arrived separately and were received on different dates and could not have come to the conclusion that the plaintiffs (i.e. the respondents herein) had imported 51 "Rixe" mopeds in a completely knocked down condition. The, Bench also held that upon the principle laid down in <NAME>'s case(1) it was not for the Collector to ascertain whether the goods, if assembled together, would constitute 51 "Rixe" Mopeds in C.K.D. condition The respondents were entitled to import the said goods, and therefore, s. 167(8) of the Sea Customs Act did not apply and the respondents consequently could not have been held guilty of breach either of that section or s. 3 of the Imports and Exports (Control) Act. The Bench also held that the decision of this Court in <CITATION> (2) did not overrule but only distinguished the judgment in <NAME>'s case,(1) and therefore, the binding force of that decision remained unshaken. Regarding the jurisdiction of civil courts, <ORG> held that where the question is simply whether one or the other entry applies and the tribunal, to which jurisdiction is entrusted in that behalf, decides it erroneously, even then its order, made final by the statute conferring such jurisdiction, cannot be made the subject matter of a suit. On the other hand, where its jurisdiction is confined to see whether the importation is under a particular entry or not, but while deciding such a question, the tribunal ,takes into account extraneous considerations, such as an entry which has no bearing upon the question, the case would fall outside the ambit of the powers of th statutory authority. The question, in other words, would then be, whether the tribunal has exceeded its jurisdiction and therefore acted in non-compliance with the provision of the statute under which it has to decide the question. <ORG> deprecated the attempt on the part of the Collector in considering the two consignments together and making out a case that the two, when put together, would make it possible to regard the goods as' "Rixe" Mopeds in C.K.D. condition. Such 'an attempt, the Bench observed, was "a new classification conjured up by the authorities to rope in the imports as being illegal which according to the terms of the licence and entry No. 295 would be clearly legal". . Lastly, <ORG> disagreed with the Trial Judge who had held that the article (1) C.A. No. 4 of 1959 decided on Aug. 17, 1960 (H.C.) (2)  7 S.C.R. 62.

in the Limitation Act applicable was Art. 14 , on the ground that once it was accepted that the order was in excess of jurisdiction it was a nullity, and therefore, there was no question of its having to be set aside. <CITATION> , (1) it held that the suit fell under Art. 62 , and therefore, was within time. Counsel for <ORG> challenged the correctness of ,the judgment of the Division Bench and urged that the Sea Customs Act had clearly vested in the Collector the authority to decide whether the goods in question fell within entry 295 or not and for which the respondents had been granted the licence. His decision, subject, of-course, to an appeal and revision provided under the Act, being final, could not be challenged in a suit save under the well recognized exceptions that his decision was not in compliance with the provisions of the Act, or that he had failed to follow the fundamental principles of judicial procedure. The present case, according to him, was one of importing "Rixe" Mopeds in C.K.D. condition, not permissible either under entry 295 or entry 294, and therefore, was a case where the importer,misusing his licence, had attempted to do indirectly what he could not do directly. There was, according to him, no question of the Collector 'acting in excess of his jurisdiction or in non-compliance with the provisions of the Act, and therefore, the Trial Judge was right in holding that no suit lay against his action. Before we proceed to consider these contentions it is expedient first to look at the provisions of the relevant law. Under s. 3 of the Imports and Exports (Control) Act, 1947, <ORG> by an order can provide for prohibiting, restricting or otherwise controlling inter alia the import of goods of any specified description and all goods to which any such order applies are deemed to be goods of which the import has been prohibited by the Sea Customs Act, 1878 and all the provisions of that Act are to have effect accordingly. The Imports (Control) Order 1955, passed under the power reserved under the Act, by cl. (3) thereof, provides that no person shall import any goods of the description specified in Sch. I thereto except under and in accordance with a licence granted by <ORG> or by an officer specified in Sch. 11. Sub-cl. (2) of cl. (3) provides that if it is found that the goods imported under a licence do not conform to the description given in such a licence under which they are claimed to have been imported, then without prejudice to any action that may be taken against the licensee under the Sea Customs Act in respect of such importation, the licence may be treated as having been utilised for importing the said goods. (1)  2 S.C.R. 577.

<NAME>

Entries' 294 and 295 of s. II of Part IV of Sch. I of the Import Trade Control Policy for the period July-December 1956 are in this connection the relevant entries. Entry 294 deals with import ,of motorcycles and scooters. Remark (ii) in its column No. 6 lays down that "Licences granted under this item will not be valid for the import of motor cycles/scooters in a completely knocked down condition". Remark (iii), however, provides that applications from approved manufacturers for import of motor cycles,/ scooters in C.K.D. condition will be considered ad hoc by the Chief Controller, Imports in consultation with <ORG>. Entry 295 deals with "Articles (other than rubber tyres and tubes) adapted for use as parts and accessories of motor cycles and motor scooters, except such articles as are adapted for use as parts and accessories of motor cars". Entry 41 in Part V deals with import of rubber tyres and tubes and other manufactures of rubber not otherwise specified.

Section 167(8) of the Sea Customs Act provides that goods shall liable to confiscation if the goods, the importation of which is for the time being prohibited or restricted by or under Ch. IV, are imported contrary to such prohibition or restriction and any person concerned in any such importation shall be liable to penalty prescribed therein. Section 188 of the Act makes an order. passed in appeal against the Collector's order, final subject only to the power of revision under s. 191 .

The position then is, under 'entry 294 above-cited import under the requisite licence of motor cycles and scooters was permitted. However, a licence permitting import of motor cycles and scooters could not be used for import of motor cycles and scooters in C.K.D. condition. Even then, the prohibition was not absolute because approved manufacturers could apply and get licences to import motor cycles 'and scooters in C.K.D. condition, albeit on an ad hoc basis. It is thus clear that entry 294 deals with the import of motor cycles and scooters and the import, though only by approved manufacturers, of motor cycles and scooters in C.K.D. condition. The entry is complete in itself so far as import of motor cycles 'and scooters complete and assembled and also in C.K.D. condition is concerned. The words "completely knocked down condition" in the entry are not used in any technical sense, and therefore, must be given their ordinary dictionary meaning, i.e., "made or constructed so as to be capable of being knocked down or taken apart, as for transportation; in parts ready to be assembled". (see Webster's New International Dictionary, Vol. IT. P. 1371 and, also Words and Phrases. Permanent Edition,% Vol. 23, p. 560).

Under entry 295, except for rubber tyres and tubes for whose import a separate licence could be obtained under entry 41 of Part V, there are no limitations as to the number or kind of parts or accessories which can be imported under a licence obtained in respect of the goods covered thereunder. Prima facie, an importer could import all the parts and accessories of motor cycles and scooters and it would not be a ground to say that he has committed breach of entry 295 or the licence in respect of the goods described therein, that the parts and accessories imported, if assembled, would make motor cycles and scooters in C.K.D. condition. There are no remarks against entry 295, as there are against entry 294, that a licence in respect of goods covered by entry 295 would not be valid for import of spares and accessories which, if assembled, would make motor cycles and scooters in C.K.D. condition. Apart from that, the. goods in question did not admittedly contain tyres, tubes and saddles, so that it was impossible to say that they constituted motor cycles and scooters in C.K.D. condition. The first two could not be imported and were in fact not imported because that could not be done under the licence in respect of goods covered by entry 295 which expressly prohibited their import and a separate licence under entry 41 of Part V would be necessary. The third, namely, saddles were not amongst the goods imported. No doubt, there was, firstly, a finding by the Collector that a trade practice prevailed under which motor cycles and scooters without tyres, tubes and saddles could be sold. Secondly, the tyres and tubes could be had in the market here and so also saddles, so that if an importer desired, he could have sold these goods as motor cycles and scooters in C.K.D. condition. The argument was that since there was a restriction in entry 294 against imports of motor cycles and scooters in C.K.D. condition, the importer could not be allowed to do indirectly what he could not do directly.

The argument apparently looks attractive. But the question is what have the respondents done indirectly what they could not have done directly. In the absence of any restrictions in entry 295, namely, that a licence in respect of goods covered by entry 295 would not be valid for import of parts and accessories which, when taken together, would make them motor cycles and scooters in C.K.D. condition, the respondents could import under their licence all kinds and types of parts and accessories. Therefore, the mere fact, that the goods imported by them were so complete that when put together would make them motor cycles and scooters in C.K.D. condition, would not amount to a breach of the licence or of entry 295. Were that to be so, the position would be anomalous as aptly described by <ORG>. Suppose that an importer were to import equal number of various parts from different countries under different indents and at different times. and the goods were to reach here in different consignments and on different dates instead of two consignments from the same country as in the present case. If the contention urged before us were to be correct, the Collector can treat them together and say that they would constitute motor cycles and scooters in C.K.D. condition. Such an approach would mean that there is in entry 295 a limitation against importation of all parts and accessories of motor cycles and scooters. Under that contention, even if the importer had sold away the first consignment or part of it, it would still be possible for the Collector to say that had the importer desired it was possible for him to assemble all the parts and make motor cycles and scooters in C.K.D. condition. Surely, such a meaning has not to be given to entry 295 unless there is in it or in the licence a condition that a licensee is not to import parts in such a fashion that his consignments, different though they may be, when put together would make motor cycles and scooters in C.K.D. condition. Such a condition was advisedly not placed in entry 295 but was put in entry 294 only. The reason was that import of both motor cycles and scooters as also parts and accessories thereof was permitted, of the first under entry 294 and of the other under entry 295. A trader having a licence in respect of goods covered by entry 294 could import assembled motor cycles and scooters, but not those vehicles in C.K.D. condition, unless he was a manufacturer and had obtained a separate licence therefor from the Controller of Imports who, as aforesaid, was authorised to issue such a licence on an ad hoe basis. Thus the res- triction not to import motor cycles and scooters in C.K.D. condition was against an importer holding a licence in respect of goods covered by entry 294 under which he could import complete motor cycles and scooters and not against an importer who had 'a licence to import parts and accessories under entry 295.

If Dr. <NAME>'s contention were to be right we would have to import remark (ii) against entry 294 into entry 295, a thing which obviously is not permissible while construing these entries. Further, such a condition, if one were to be implied in entry 295, would not fit in, as it is a restriction against import of motor cycles and scooters in C.K.D. condition and not their parts and accessories. There is, therefore, no question of a licensee under entry 295 doing indirectly what he was not allowed to do directly. What he was not allowed to do directly was importing motor cycles and scooters in C.K.D. condition under a licence under which he could import complete motor cycles and scooters only. That restriction, as already observed, applied to a licensee in respect of goods described in entry 294 and not a licensee in respect of goods covered by entry

295. The result is that when the Collector examines goods imported under a licence in respect of goods covered by entry 295 what he has to ascertain is whether the. goods are parts and accessories, and not whether the goods, though parts and 'accessories, are so comprehensive that if put together would constitute motor cycles and scooters in C.K.D. condition. Were he to adopt such an approach, he would be acting contrary to and beyond entry 295 under which he had to find out whether the goods imported were of the description in that entry. Such an approach would, in other words, be in non-compliance of entry 295.

The question then is whether such a reading of the two entries is in any way contrary to the decisions of this Court. In <NAME>) the principle laid down was that <ORG> in its writ jurisdiction does not sit in appeal over the correctness of the decision of the authorities under the Sea <ORG> Act on appreciation of entries in the Hand Book or in the Indian Tariff Act. In that case, the appellant, who had a licence to import iron and steel bolts, nuts, etc., imported nuts and bolts which were the components of 'Jackson Type Single bolt oval plate belts fasteners", which were described in the bill of entry as 'store bolts and nuts'. The <ORG> found that these were in reality the actual components of Jackson Type Single belt oval plate belts fasteners, import whereof was totally prohibited. The Collector, while arriving at his decision, took into account also the fact that washers, the third component of the prohibited article, were imported by a firm owned by the appellant's relations. On these facts, this Court held (1) that importing components of a prohibited article was importing the prohibited article, (2) that the evidence that washers imported by the relations of the appellant was considered by the Collector as evidence to confirm his conclusion that the nuts and bolts imported by him were in reality the components of the prohibited article, and (3) that where the decision of the statutory authority is whether an item falls under one or the other entry, <ORG> could not interfere with that decision on the groun d that it is erroneous. That is because when a statute confers power on an authority to decide a particular question, its decision, even if it is erroneous,, is still within its jurisdiction.

What needs to be observed in that decision is that the Collector's decision was, under which of the two competing entries the imported items fell, that is, whether the goods were bolts and nuts or were components of the prohibited article. And the Court there laid down the well established principle that <ORG>, under Art. 226 , could not interfere with the decision of the authority upon whom jurisdiction to decide the question, whether the goods fell under one or the other entry, was conferred on the ground that it was erroneous. Further, the nuts and bolts imported by the appellant could only be, used as Components of the prohibited article. In other words, the import was of parts of the (1)  7 S.C.R. 62.

prohibited article and therefore of the prohibited article. It was, therefore, that the <ORG> held (1) that the <ORG>' decision was not incorrect, and (2) that the importer could, not be allowed to do indirectly what he could not do directly.

It will be noticed that the Bombay decision in <NAME> case(1) was not dissented from but only distinguished, and therefore, <ORG> in the present case was justified in following it. It is true, however, that counsel for the appellant there relied on that decision in support of his proposition that a ban on a completed article cannot be read as a ban on the importation of its constituents, which, when assembled, would result in the prohibited article, and this Court pointed out in answer that in <NAME> case,(1) the imported components could not have when assembled, made up the completed article because of the lack of certain essential parts which admittedly were not available in India and could not be imported. The real distinction, however, between the two cases was that the decision of the Collector in <NAME> case(1) was not, as was the decision in <NAME>'s case, (2) under which of the two competing entries the imported goods fell but that the imported goods in question, if assembled, together, would not be the goods covered by the entry, and therefore, not the goods in respect of which the licence was granted. Further, the articles in question, even when assembled together, were not prohibited articles as in <NAME>'s case (2). <NAME> case(2) is clearly distinguishable because it is not as if motor cycles and scooters are prohibited articles as was the case there. The restriction is not against licensees importing motor cycles and scooters under entry 294 and parts and accessories under entry 295 but against the licensees under entry 294 importing motor cycles and scooters in C.K.D. condition. The question in the instant case was not under which of the two entries, 294 or 295, the goods fell, but whether the goods were parts and accessories covered by entry 295.

<CITATION> , ( 3 the suit filed by the appellants was for recovery of a sum paid by way of purchase tax under the Madras General Sales Tax Act, 1939. The cause of action was that the amount had been illegally recovered. Relying on s. 18A of the Act, this Court held that the expression "any assessment made under this Act" in that section was wide enough to cover all assessments made by the appropriate authorities under the Act and even if an assessment was incorrect, so long as it was within the jurisdiction of the authorities, it was not non-compliance of the statute, and therefore, was not covered by the principle laid down in the case of <ORG>) The Court observed:

(1) C.A. 4 of 1959 dt. Aug. 17, 1960(H.C.) (2) [1964] 7 S.C.R. 62.

(3) [1964] 1.S.C.R. 752. (4) [1948] L.R. 67 I.A. 222.

<NAME>

"There is no justification for the assumption that if a decision has been made by a taxing authority under the, provisions of a taxing statute, its validity can be chal- lenged by a suit on the ground that it is incorrect on merits and- as such it can be claimed that the provisions of the said statute have not been compiled with." This principle was repeated in <NAME> v. Madhya Pradesh(1) where it was held that where a statute gives finality to the orders of the special tribunal the civil court's jurisdiction must be held to be excluded if there is adequate remedy to do what the-civil courts would normally do in a suit, i.e., to correct an assessment which is erroneous. The Court also pointed out that in the Firm Illuri Subbayya Chetty & Sons' case, (2) it had been said that <NAME> & Co.'s case(3) was an authority for the proposition that non-compliance with the provisions of the statute would render the entire proceedings before the authority illegal and without jurisdiction. The case of <NAME> v. Andhra Pradesh (4) illustrates as to when an authority can be said to have acted in non- compliance with the provisions of the statute under which it derives its authority. Section 3(2) of the Madras Estates Land (Reduction of Rent) Act, XXX of 1947 authorised <ORG> to fix the rates of rent in respect of each class, of ryoti land in each village in the State after considering the recommendations of the special officer and the remarks of <ORG>. Section 8(1) provided that no order passed under s. 3(2) could be challenged in a civil court. The suit filed by the-- appellants disputed the legality of the notification reducing the rates of land in respect of the dry delta ryoti lands in a village on the ground that the class of land had been determined to be delta ryoti lands on the basis only of the settlement register which did not contain any entry with respect to the village in question, that the settlement register could not be treated as conclusive and that proper factual enquiry was necessary. <ORG> High Court held that the suit was not main- tainable by reason of s. 8(1) . <NAME>, J., speaking for the Bench. held that under s. 2 the special officer had to determine the average rate of cash rent per acre for each class of ryoti land such as wet, dry or garden. '<ORG> could only be done on relevant material. The special officer, however, had based his determination on a report of his assistant, who had considered the entry in the settlement register of another village. That meant that the special officer had made his determination on irrelevant evidence, i.e., on the register which did not contain any data with respect to the land in the village in question. On these facts he hold that the (1)  3 S.C.R. 662.

(3) [1948] L.R.67 I.A. 222.

(2) (1964) 1 S.C.R. 752.

(4) [1970] 2 S.C.R.714 .determination by the special officer was based on no evidence with the result that it was in violation of the fundamental principles of judicial procedure. A fortiori, the order of the Government made, under s. 3(2) on the basis of the recommendations of the special officer was not in conformity with the provisions of the Act and was therefore outside the purview of s. 3(2) and consequently s. 8(1) was inapplicable. Thus, sec. 8(1) was held not to apply because the Government's determination could not be said to be one under S. 3 (2).

The words "a decision or order passed by an officer of <ORG> under this Act" used in S. 188 of the Sea <ORG> Act must mean a real and not a purported determination. A determination, which takes into consideration factors which the officer has no right to take into account, is no determination. This is also the view taken by courts in England. In such cases the provision excluding jurisdiction of civil courts cannot operate so as to exclude an inquiry by them.. <CITATION> (1) Lord <NAME> at pages 213 and 214 of the Report stated as follows :

"It has sometimes been said that it is only where a tribunal acts without jurisdiction that its decision 'is a nullity. But in such cases the word "jurisdiction" has been used in a very wide sense, and I have come to the conclusion that it is better not to use the term except in the narrow and original sense of the tribunal being entitled to enter on the enquiry in question. But there are many cases where, although the tribunal had jurisdiction to enter on the enquiry, it has done or failed to do something in the course of the enquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith . It may have made a decision which it had no power to make. It may have failed in the course of the enquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to art, so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive. But if it decides a question remitted to it for decision without committing any of these errors it is as much entitled ,to decide that question wrongly as it is to decide it rightly." (1) [1969]1 All E.R. 208.

To the same effect are also the observations of Lord <NAME> at page 233. R, v. <ORG>) is yet another decision of a tribunal properly embarking on an enquiry, that is, within its jurisdiction, but at the end of it making an order in excess of its jurisdiction which was held to be anullity though it was an order of the kind which it was entitled to make in a proper case.

The principle thus is that exclusion of the jurisdiction of the civil courts is not to be readily inferred. Such exclusion, however, is inferred where the statute gives finality to the order of the tribunal on which it confers jurisdiction and provides for adequate remedy to do what the courts would normally do in such a proceeding before it. Even where a statute gives finality, such a provision does not exclude cases where the provisions of the particular statute have not been complied with or the tribunal has not acted in conformity with the fundamental principles of judicial procedure The word "jurisdiction" has both a narrow and a wider meaning. In the sense of the former, it means the authority to embark upon an enquiry; in the sense of the latter it is used in several aspects, one of such aspects being that the decision of the tribunal is in non-compliance with the provisions of the Act. Accordingly, a determination by a tribunal of a question other than the one which the statute directs it to decide would be a decision not under the provisions of the Act, and therefore, in excess of its jurisdiction.

The respondents' licence admittedly authorised them to import goods covered by entry 295. They could, therefore, legitimately import, on the strength of that licence, all and several kinds of parts and accessories of motor cycles and scooters. The only question, therefore, before the Collector was whether the respondents' licence covered the goods imported by them, i.e., whether the goods were parts and accessories. If they were, the imports were legitimate and no question of their being nut covered by the licence or the respondents having committed breach of s. 3 of the Imports and Exports (Control) Act or s. 167(8) of the Sea Customs Act could possibly arise. What the Collector, however, did was that he put the two consignments together and held that they made up 51 'Rixe' Mopeds in C.K.D. condition and were, for that reason, not the articles covered by entry 295 but articles prohibited under remark

(ii) of entry 294. But entry 294 deals with the motor cycles and scooters complete and assembled. Remark (ii) against that entry prohibits an importer who held a licence to import motor cycles and scooters from importing motor cycles and scooters in C.K.D. condition. Remark (ii) containing that prohibition had nothing to do with entry 295 which did not (1) [1953] 2 All E.R. 4 contain any limitations or restrictions whatsoever against imports of parts and accessories.

That being so, if an importer has imported parts and acces- sories, his import would be of the articles covered by entry

295. The Collector could not say, if they were so covered by entry 295, that, when lumped together, they would constitute other articles, namely, motor cycles and scooters in C.K.D. condition. Such a process, if adopted by the Collector, would mean that he was inserting in entry 295 a restriction which was not there. That obviously he had no power to do. Such a restriction would mean, that though under a licence in respect of goods covered by entry 295 an importer could import parts and accessories of all kinds .and types, he shall not import all of them but only some, so that when put together they would not make them motor cycles and scooters in C.K.D. condition. In the present case even that was not so because he would have to buy tyres, tubes and saddles to convert them into motor cycles and scooters into C.K.D. condition. That would be tantamount to the Collector making a new entry in place of entry 295 which must mean non-compliance of that entry and acting in excess of jurisdiction during the course of his enquiry even though he had embarked upon the enquiry with jurisdiction., In our view that was precisely what the Collector did. This is, therefore, not one of those cases where between ,two competing entries the statutory authority applied one or the ,other, though in error, and where, a civil court cannot interfere.

In this view the order was in non-compliance of the provisions ,of the statute, and therefore.. was covered by the exceptions laid down in <NAME> & Co.'s case(1). It was not an order in respect of which the Collector was invested with jurisdiction. That being so, 'the provision excluding the jurisdiction of the civil courts was not applicable. Indeed, the order was a nullity and Art. 14 of the Limitation Act of 1908 could not be applied to hold the suit time barred. Even if Art, 14 applied, it would not be time- barred, if, as <ORG> pointed out, the date of the appellate order was taken into consideration. The judgment of <ORG> of <ORG>, there- fore, must be upheld. Consequently, the appeal fails and is dismissed with costs.

V.P.S. Appeal dismissed. (1) [1948] L.R. 67 IA. 222.


<NAME>, J.

1. The properties in suit were attached and brought to sale in execution of a simple money decree. After the decree was passed, the judgment debtor (1st defendant) executed a usufructuary mortgage over them in favour of the 2nd defendant in this suit, who, in his 'urn, assigned his mortgage rights to the prefect plaintiff. When the present plaintiff sued to recover possession of the properties on the strength of the mortgage, an objection was raised by the 3rd defendant, who was the auction-purchaser at the sale in execution of the simple money-decree, that the suit was barred by limitation.

2. It appears that the plaintiff's assignor applied a few days before the sale to have the properties sold subject to his mortgage and asked the <ORG> to have it so stated in the sale proclamation. The claim was dismissed as being made too late. The date of the order was 24th August 1911. The present suit was not instituted till 1916 and is clearly out of time if Article 11 of the Limitation Act applies to it. The Subordinate Judge, dissenting from the view of the District Munsif, held that the suit was in time as the mortgagee's application on 24th August 1911 was, in his opinion, directed towards the settling of the terms of the sale proclamation and, as such, fell under Order XXI, rule 66, Civil Procedure Code, and not under rule 58.

3. The respondent seeks to support the lower Appellate Court's order on the ground that there was no prayer in the application (bat the attachment should be raised, nor any declaration in the order that the mortgage was no longer subsising, He further argues that, assuming the order of 24th August 1911 was an order upon a claim petition, such an order will only bind those who were parties to it and, therefore, an auction purchaser who was not a party to those proceedings cannot take advantage of the fact that the claim was dismissed.

4. I am of opinion that none of these representations and arguments can avail the plaintiff who has come to Court after the period prescribed by law.

5. In the first place I may say I am not much influenced either by the fact that Exhibit 1 terms itself a claim petition and that the 2nd defendant in 3 places describes himself in that petition as a claim petitioner, or, on the other hand, by the fact that the provision of law under which it was presented is given as Order XXI, rule 66. We must look at the substance of the application, it was one to have it recognised by the <ORG> that the property about to be sold was subject to an encumbrance in favour of the petitioner.

6. The effect of the dismissal of this application was to create a belief in the minds of those who bid for the property that the property was free of encumbrance.

7. Can the mortgagee or his representative be allowed to ignore the <ORG>'s order, to which he was a party, and proceed as if there had been no such proceedings and as if what was sold was an encumbered property?

8. I think the dismissal of his application was not a nullity. <CITATION> 62 Ind. Cas. 720 : 37 M.L.J. 159 : (1919) M.W.N. 663, which followed our earlier decision in <CITATION> 38 Ind. Cas. 937 : 31 M.L.J. 247, it was pointed out that one form of order to be made under the head of investigation of claims and objections in Order XXI, Code of Civil Procedure, is that definitely provided for in rule 62, which permits a <ORG> to continue an attachment subject to a mortgage in favour of a person not in possession. The learned Judges observed that if one particular form of order on the claim on a mortgage can be passed, then any claim that relates to an alleged mortgage or the existing liability under a mortgage must be a claim under rule 58. I think that we should follow the above two decisions of this <ORG>, and that <CITATION> 36 Ind. Cas. 627 : 41 B. 64 : 18 Bom. L.R. 782, which was a case of a mortgagee asserting his title in response to a notice of the <ORG> calling for objections to a <NAME> proclamation, is distinguishable.

9. The case of <CITATION> 52 Ind. Cas. 938 : (1919) M.W.N. 805 may be distinguished on the ground that the application in that case was merely to have certain objections to an auction recorded and did not ask for any order on the merits of the petition.

10. The Full Bench decision in <CITATION> 48 Ind. Cas. 270 : 41 M. 985 : 8 L.W. 292 : 24 M.L.T.197 : (1918) M.W.N. 599 : 35 M.L.J. 335 is conclusive on the point that an order dismissing a claim petition for delay, delay being one of the grounds under which claims may be dismissed under the proviso to rule 58, is an order which becomes final against its claimant under rule 63, unless be files a suit within one year of the order. This disposes of the respondent's first two objections and of the Subordinate Judge's reasoning. As regards (he third objection, it is obvious that the auction-purchaser is very much interested in obtaining a good title to his purchase and being a party (3rd defendant) to this suit, he can raise any objection such as limitation that may serve as a bar to the maintenance of the suit.

11. Now that the time has expired for instituting a suit to establish the right that was in effect negatived in the claim proceeding, the question is not one of estoppel or res judicata arising out of the former proceedings, but one of limitation. This does not depend on any nice question of law whether the auction purchaser represents the mortgagee's or the judgment-debtor's interest after the sale. It is sufficient answer to the respondent's objection to say that the plaintiff is necessarily bound by the final order on his assignor's claim petition and that any defendant, especially one who is in possession of the property sought to be recovered by the suit, can raise the plea of limitation.

12. This appeal must be allowed and the District <NAME>'s decree restored with costs here and in the lower <ORG>.

<NAME>, J.

13. I entirely agree. An ingenious argument was advanced, namely that because the auction-purchaser is the representative of the judgment debtor and because the judgment-debtor was not a party to the order on the claim petition, he cannot take advantage of the order on the claim petition when it is passed against the claimant any more than he would be bound by that order if it had been in favour of the claimant; and for this proposition <NAME> v. <NAME> 31 M. 163 : 18 M.L.J. 26 : 2 M.L.T. 266 was quoted. In that case and in the oases following it and in the <ORG> case in <NAME> v. <NAME> 30 M. 335 (F.B.) : 17 M.L.J. 95 : 2 M.L.T. 116, which it professes to follow, no sale had taken place on the basis of the order disallowing the claim petition and the only question was whether as between the claimant on the one hand and the judgment-debtor on the other, either would be bound by the order on the claim petition. But it has never been held that the claimant is not himself bound by the order in favour of the decree-holder disallowing the claim of the former (unless, of course, he sets aside the order within one year) and if the <ORG> auction-purchaser cannot take advantage of that order in favour of the decree-holder, the result would be that such an order becomes absolutely futile and would have no effect or even evidentiary value as regards the extent of title conveyed under the auction-sale to the purchaser therein. In other words, the unsuccessful claimant, who has not made the judgment debtor a party to the claim proceedings, can again put forward his claims against the auction-purchaser, whether as plaintiff or as defendant. No case has been quoted in which it has been held that such a startling result follows the omission to make the judgment debtor a party in the claim proceedings. On the other hand, it has been held in several oases that the judgment-debtor is not a necessary party to a claim proceeding and that the proper parties to such proceedings are the decree-holder and the claimant. Of course, if the judgment-debtor intervenes and actively opposes the claim along with the decree holder and the claim petition succeeds, he may be bound by the order unless he sets it aside within one year, as the order may be then said to be passed against him also. But ordinarily, it is the decree-holder's right to bring the property to sale against the claim of the claimant and the claimant's right to have the property released (or sold subject to the claim) which are litigated in such a petition. The auction purchaser is entitled to take advantage of the order against the claimant in such a case (if it is not set aside by a suit within one year), not because the purchaser is the representative of the decree-holder, but became the order which established the right of the decree-holder to bring the property to sale against the claim of the claimant cannot be given effect to otherwise and was clearly intended by the <ORG> to have the effect of precluding the claimant from putting forward his claim again in opposition to the auction-purchaser at the sale held in pursuance of the order against the claimant. The conclusive establishment of the decree-holder's right to bring the property to sale free from the claimant's alleged incumbrance involves the right of the purchaser at that sale to get a title to the property free from such encumbrance.

14. I concur in allowing the appeal with costs.


JUDGMENT <NAME>, J.

1. This is an appeal on behalf of the <ORG> against an order passed by the Additional Subordinate Judge, <NAME> dismissing an objection filed under Section 47, Civil P. C.

2. The <ORG>.-respondent had brought a suit for specific performance of a contract against the <NAME>. The suit was decreed on 21-2-1948 in the following terms: Claim for "Properties mentioned in the Schedule below belonged to one <NAME> & <NAME>. became owners of the same after the death of said <NAME>. on different dates took Rs. 600 as earnest money from the <ORG>. & executed a bainanama in favour of the <ORG>. & promised to sell those properties to <ORG>. by executing & registering s sale deed. A deed of sale was dratted on proper stamps on the advice of the <ORG>. 1, But as <NAME>. subsequently refused to execute & register the said deed, <ORG>'s claims are for a decree of specific performance of contract in respect of the said deed against the <ORG>. & on <ORG>, fail- ing to execute & register the deed within the same limit prescribed by the <ORG> to have the deed executed & registered by the <ORG> & to have coats of this suit from the <NAME>. & if claim of specific performance of contract be refused to the <ORG> then to have tbe amount of money raid by the <NAME>. with interest. Claims valued for Rs 9024 Rupees nine thousand twenty four only.

(Schedule omitted) This suit coming on this day for final disposal before <NAME> Sub-Judge in the presence of <NAME>, pleader for plff. & of <NAME> pleader for the deft.

It is ordered & decreed that the suit be decreed on contest with cost?. Deft, do execute & register the sale deed Ex. 3 within one month from today upon <ORG>'s. depositing in <ORG>, the sum of Rs. 2998-less costs of the present suit awarded in <ORG>'s favour in defenoe the <ORG>. may have valid & proper kobala through <ORG> & that the sum of Rs. 1071 4-9 paid by the <ORG>, to the <ORG>. on account of the costs of this suit."

3. A Her the decree had been passed, a joint application was filed on behalf of the <ORG>. & <ORG>, l (<ORG>. 2 having died in the meantime leaving <ORG>, l as the sole legal representative) stating inter alia that the <ORG>. intended to have the document registered & that he "amicably gives up <NAME> possession from this day to the properties sold out" & the <ORG>. also "amicably paid to the <ORG>, the balance of the consideration money getting the <ORG> duly executed & registered in respect of property included in Ex. 3 & getting <NAME> possession this day of the property sold."

The prayer was in the following terms:

"It is accordingly prayed that in tbe aforesaid circumstances a proper order, may be passed directing due execution & registration of the said deed on the <ORG>'s acknowledging receipt of the balance of the consideration money & for granting <ORG> possession to the plff."

The document was accordingly returned on a joint receipt by the lawyers of both the parties.

4. On 10-8 1948 <ORG> filed an application in execution of the decree aforesaid with a prayer for khas possession of the properties mentioned in the schedule by evicting the J.-D. therefrom under 0. 21, r. 32, Civil P. C. The J.-D. filed an objection under Section 47 of the Code raising various points in opposition. We need refer only to those which are relevant for the present appeal. They are: (l) That after the execution of the document in terms of the decree there is nothing further which can be put into execution. (2) That even if <ORG> was entitled to pray for delivery of khas possession in execution of the decree he is not entitled to do so in as much as the <ORG> had admitted in the joint petition filed in <ORG> on 21.2.1948 that possession had been delivered on that day.

5. The learned Subordinate Judge overruled the objections raised & directed the execution to proceed.

6. On behalf of the appellant the contentions as made in the Court below are reiterated.

7. Before we consider the terms of the dearer which is under execution, it is necessary to consider the scope & function of a suit for specific performance. It is incontestable that in a suit for specific performance of contract for the sale of land it is open to the plff. to join in the same suit two prayers, one for the execution of the deed of transfer & another for recovery of possession of the land in question. <CITATION> , 37 Cal. 57. <NAME> in <NAME> v. <NAME>, 14 C. L. J, 159, repelled the argument that the plff. in a suit for specific performance has no cause of action for delivery of possession until the conveyance is actually executed in his favour & the title is completed. It was also held that the right to recover possession springs out of the contract which is being specifically enforced & not on the narrower view expressed in some of the oases that it was only as a result of the execution & completion of the conveyance that such a right arises. The same view was expressed by <ORG> in <CITATION> , 5 Pat. L. J. 314:

"In a suit for specific performance of a contract for the sale of land it is open to the plff. to join with his prayer for especial performance a claim for delivery unless the contract expressly disentitles him to <NAME> relief."

In a more recent decision <NAME> v. <NAME>, A. I. R. (18) 1931 Pat. 179, <ORG> has reiterated the same view & has held that even when in an order for the execution of the necessary document the <ORG> makes no specific direction for possession being delivered, yet the executing Oourt has a right to order delivery of possess on of the property which is the subject matter of the suit. Some of the <ORG>s have gone so far as to hold that if the plff. in a suit for specific performance omits to ask for delivery of possession he -might be barred under the provisions of O. 2, R. 2, Civil P. C. Deonandan Prasad v. <NAME> (<ORG>); <CITATION> , 22 Mad. 24 ; <NAME> v. <NAME>, 18 Bom. 537. We do not overlook the contrary view expressed in a later case by the Madras High <ORG> in <CITATION> , 38 Mad. 698, but in a more recent case reported in <CITATION> , 47 Mad. 150, this view was not followed & dissented from. It was also pointed out that if the learned Judges in the case reported in <CITATION> , 88 Mad, 698, intended to dissent from the earlier view there should have been a reference to a larger Bench & that decision was not taken to represent the view of the Madras High Oourt.

8. On a reference to the plaint in the present case, it is evident that the entire case was based on the agreement evidenced by Ex. 3. The prayer was for specific performance of the contract as contained in that document. On a reference to the decree passed in the present case also it will appear that the opening words of the ordering portion of the decree are in the following terms : "It is ordered & decreed that the suit be decreed on contest with cost." No doubt there are further directions given as to the due execution of the document as also for the payment of the balance of the consideration money. As observed by <NAME> in the case of <CITATION> , 59 cal. 501, the usual form of a decree in a suit for specific performance is that the agreement is referred to be specifically performed & carried into execution with a further provision about the details of the steps to be taken by the parties. The most important part of the decree is that portion where the <ORG> directs the contract to be specifically performed. The details which follow do not in any way limit the jurisdiction of the executing <ORG> to the particular steps which are mentioned in the decree but all such: other steps which ought to be taken for giving full effect to the decree for specific performance are not only within the competence of the <ORG> but the <ORG> is bound to assist the party to that extent, <NAME> quotes with approval the observation by Sergeant <NAME> in <CITATION> , 12 Bom. 174, where a decree was allowed to be amended to be put in the proper & usual form so as to declare.

"that the agreement ought to be specifically performed & the <ORG> doth order & decree that the same be specifically performed accordingly,"

for the purpose of avoiding any doubt as to its scope & implication.

9. When the decree in the present case is in the general form that the suit be decreed on contest reference his to be made to the plaint along with the agreement, Ex.-6. There is no doubt that the declaration made by the trial Judge was' for the purpose of giving all the reliefs which the party required for giving effect to the agreement.

10. We ought to remember in this connection that no special form of decree in a suit for specific performance is supplied by the Civil P. C. chap. II, Specific Belief Act, deals with the various circumstances under which a contract may be enforced specifically & where it cannot be so allowed. When a contract is to be specifically enforced, it means simply this that when the parties do not agree to perform the contract mutually the intervention of the <ORG> is required & the <ORG> will do all such things as the parties would have been bound to do had this been done without the intervention of the <ORG>. A sale of a property after payment of the consideration & upon due execution of the deed of sale pre- supposes & re-quires the vendor to put the purchaser in possession of the property. It cannot be suggested that when a party comes to <ORG> for the specific performance of a contract he is to be satisfied with simply the execution of the document on payment of the consideration money. The <ORG> when allowing the prayer for specific performance vests the executing <ORG> with all the powers which are required to give full effect to the decree for specific performance. By the decree for specific performance, the <ORG> sets out what it finds to be the real contract between the parties & declares that such a contract exists & it is for the executing <ORG> to do the rest.

11. It may be noticed further that a decree in a suit for specific performance has been considered to be somewhat in the nature of preliminary decree which cannot set out in the fullest detail all the different steps which are required to be taken to implement the main portion of the order directing specific performance of the contract. The executing <ORG> is in such a case vested with authority to issue necessary directions.

12. In our view, therefore, the directions given by <ORG> for putting the D. H. in pos-tession is correct & must be maintained unless of course the next point taken on behalf of the judgment-debtor is sustainable.

13. As already indicated, <ORG> relies upon the passages already quoted in the joint petition filed on behalf of the plff. & the <ORG>, on 21-2-1948. The interpretation which Mr. <NAME> wants to put on this petition if given effect to would introduce clear contradictions between the body of the petition & the prayer as made. We have gone through the original petition in Bengali & have no doubt that what the parties recited in the body of the petition was not what has already been done but what was purported to be done by the parties. The parties clearly stated that they wanted directions from the <ORG> on the points referred to therein including the prayer for delivery of possession. That this was the real intent of the parties is clear from the last portion of the prayer where both the parties pray for delivery of possession to the plff. under the orders of the <ORG>. This point must therefore be overruled.

14. The appeal is accordingly dismissed with costs.

<NAME> J.

15. I agree.