<NAME>, J.

1. The question referred to this Bench for determination is as to whether <ORG> can interfere in the exercise of its supervisory jurisdictions under Article 227 of the Constitution of India, with the finding of <ORG> recorded when a dispute, which is the subject matter of a proceeding under Section 145, Cr. <NAME> cannot be decided by the Magistrate before whom it is pending, and it is referred to a civil Court for a finding. Section 146 of the Code provides that if the Magistrate in such a case is of the opinion that he is unable to decide as to which of the contesting parties was in such possession of the subject of dispute, he may attach it and draw up a statement of the case and forward the record of the proceedings to a civil Court of competent jurisdiction to decide the question whether any and which of the parties was in possession of the subject matter of dispute on the date of the order. Sub-section (1B) of Section 146 provides that at the conclusion of the enquiry the civil Court shall transmit its finding together with the record of the proceedings to the Magistrate by whom the reference was made and the Magistrate shall, on receipt thereof, proceed to dispose of the proceeding under Section 145 in conformity with the decision of <ORG>. Sub-section (1D) provides that no appeal shall lie from any finding of <ORG> given on a reference under this section nor shall any review or revision of any such finding be allowed. Sub-section (1E) lays down that an order under this section shall be subject to any subsequent decision of a Court of competent jurisdiction. A decision of <ORG> of this Court reported in <CITATION> , 1962 BLJR 105: (1962 (2) Cri LJ 577) is to the effect that in view of the provisions of Sub-section (1D) of Section 146, Cr. <NAME> <ORG> is not competent to interfere with the finding of <ORG> returned by it on a reference under Sub-section (1) of this section, but that it is competent to rectify any palpable error under Article 227 of the Constitution of India.

2. Accordingly, two questions arise in substance for consideration in the present reference. One is, whether Article 227 of the Constitution can, be applied and that the finding of <ORG> in the present context can be interfered with by <ORG>. Article 227 of the Constitution provides that every High Court shall have superintendence over all <ORG> and tribunals throughout the territory in relation to which it exercises jurisdiction. <ORG> in the very nature of its constitution is subordinate to <ORG> and as such is subject to the supervisory jurisdiction of <ORG> as contemplated under this Article. It is unnecessary to refer in detail to the relevant provisions preceding the incorporation of this Article in the Constitution of India. It is enough to state that the jurisdiction to superintend was conferred upon <ORG> of the three Presidency towns and the same was also incorporated in Section 9 of the Indian High <ORG> Act, 1861. When the Government of India Act, 1915, was enacted, Sections 9 and 15 of the Indian High <ORG> Act, 1861, which together comprised the Superintending jurisdiction of <ORG>s, came to be replaced by Section 107 of the Government of India Act, 1915. Under Section 224 of the Government of India Act 1935, the power to superintend conferred upon <ORG> under Section 107 was curtailed to a certain extent so far as the judicial part of it was concerned, inasmuch as Sub-section (2) of Section 224 provided, "Nothing in this section shall be construed as giving to <ORG> any jurisdiction to question any judgment of any inferior Court which is not otherwise subject to appeal or revision".

The superintending jurisdiction was both administrative and judicial under the Indian High <ORG>s Act as also Government of India Act, 1915, but under Section 224 of the Government of India Act, 1935, the, jurisdiction was narrowed down to administrative superintendence. Under Article 227 , however, <ORG> thought it fit to invest larger power in <ORG>, so that the position in this respect now is the same as it was under Section 107 of the Government of India Act, 1915, and under Section 15 of the Indian High <ORG>s Act, 1861. In general terms, no restriction has been placed upon this power of <ORG> which, is to be exercised in a suitable case; yet it is well settled that, where an appeal is provided, the <ORG> will not interfere by any peremptory order with the ordinary course of adjudication, save in cases wherein a defeat of law and a grave wrong are manifest and are irremediable by the regular procedure, vide <CITATION> 7 Bom 341 (FB). It has also been laid down in the above decision, in so far as it is relevant that the <ORG> will, in all cases, regard its exercise of the extraordinary jurisdiction as discretional, and subject to considerations of the importance of particular case.

The principle laid down in the above case is that the <ORG> will sedulously abstain from making any order or refusing to make it on grounds the appreciation of which is exclusively assigned by law to some other authority, provided the legal competence be exercised in good faith on matters that may reasonably be understood as within its lawful range. Their Lordships of the Supreme <ORG> in the cases of <CITATION> ) AIR 1955 SC 233; <CITATION> , AIR 1958 SC 398 and <CITATION> , AIR 1960 SC 137 have also considered the scope and defined the limits of discretion to be exercised by the High <ORG> under Articles 226 and 227 of the Constitution. In the following case, they have also held that if another effective remedy be open to the party then exercise of jurisdiction under Article 227 will not be resorted to: <CITATION> , AIR 1961 SC 1506. Similar is the view expressed by the Bombay High <ORG> in <CITATION> , AIR 1956 Bom 545 and the Calcutta High <ORG> in <CITATION> , AIR 1952 Cal 526. The principle laid down by the Supreme <ORG> in the above decisions is that the scope of the power of interference by the High <ORG> under Article 227 is co-extensive with the exercise of its power under its writ jurisdiction under Article 226 of the Constitution, and the power of interference may extend to quashing an impugned order on the ground apparent on the face of the record; but under Article 227 the power of interference is limited to seeing that the tribunal functions within the limits of its authority.

One of the questions mooted in the case of <NAME>, AIR 1958 SC 398 was whether an interlocutory order passed by <ORG> could be interfered with by <ORG> in an appeal against that order, and it was laid down that although, ordinarily, such an order could not be interfered with, yet <ORG> would interfere with such, an order wheat the features of the case warrant such interference Mr. <NAME> has referred in particular to the decision in the case of <NAME>, AIR 1960 SC 137 wherein it has been laid down that however wide may be the powers of <ORG> under Article 227-- and it is definitely wider than the power under Section 115 of the Code of Civil Procedure it is well established that <ORG> cannot in the exercise of its powers under that section, assume powers to correct every mistake of law.

Where there is no question of assumption of excessive jurisdiction or refusal to exercise jurisdiction or any irregularity or illegality in the procedure or any breach of any rule of natural justice but, if anything, it is merely an erroneous decision which error, not being apparent on the face of the record, it cannot be corrected by <ORG> in revision under Section 115 of the Code of Civil Procedure or under Article 227 of the Constitution. The conclusion seems to be that <ORG>, as a rule, will not interfere in the exercise of its superintending jurisdiction with the order of a subordinate Court merely on questions of facts or only because there is failure to consider certain affidavits filed by the parties, if <ORG> is satisfied that <ORG> has fairly considered the evidence on record, even if every item of evidence has not been gone into.

3. Mr. <NAME> has urged that If an alternative effective remedy is open, <ORG> will not exercise its jurisdiction under Article 227 of the Constitution. It is true, no doubt, that <ORG> in the case of <NAME>, AIR 1961 SC 1506 and <ORG> of Bombay in the case of <NAME>, AIR 1956 Bom 545 and <ORG> in the case of <NAME>, AIR 1952 Cal 526 Save laid down that where an alternative remedy 5s open, <ORG> will, as a rule, not interfere either under Article 226 or 227. That, in fact, is a well known consideration in determining whether <ORG> should give relief by way of issuing a writ or in its power of superintendence, although the aforesaid decision of <ORG> makes it clear that it is not an inflexible rule and it is a matter of discretion for <ORG> to be exercised on a consideration of a variety of individual facts. In the present case, Mr. <NAME> has referred to Sub-section (1E) of Section 146, Code at Criminal Procedure, which lays down that an order under this section shall be subject to any subsequent decision of a <ORG> of competent jurisdiction. It is true, no doubt, that an order under this section can be reopened by way of regular suit for declaration of title, but that, in itself, will be hardly a ground for the refusal by <ORG> to exercise its jurisdiction under Article 227 in a suitable case. If that view were taken, even a judgment containing a flagrant violation of legal principles, or principles of natural justice, would also be upheld, which is putting the matter in the extreme form, and I am not inclined to agree with Mr. <NAME> in so far as his contention is based on Sub-section (1E) of Section 146.

4. Another relevant question, however, for consideration in determining whether <ORG> will exercise its jurisdiction under Article 227 of the Constitution, in the matter of a finding by <ORG>, is as to whether the exercise of such jurisdiction will not be superfluous, inconvenient and cumbersome, The view appears to be as expressed in some of the decisions, to which reference has been made by the learned counsel, that Sub-section (1D) bars out any appeal, review or revision of such a finding and as such the only remedy open, to a party must be the procedure provided under Article 227 of the Constitution. It is no doubt, true that Sub-section (1D) in terms refers to this matter specifically, but the point for consideration is whether it amounts to prohibiting an appeal review or revision of such a finding recorded by <ORG> or it goes beyond it and puts such a finding beyond the power of <ORG> as well to consider when the matter comes up before it under Sections 435 and 439, Code of Criminal Procedure when such finding has been reserved by the Magistrate and an order has been plained by him in conformity with the decision of <ORG>.

It is, no doubt, true that an opinion has been expressed in some of the decisions that Sub-section (1D) gives finality to the finding of <ORG> and that it cannot be interfered with either under SECTIONS 435 and 439 or under Article 227 of the Constitution. That was the view expressed by <NAME>, J. of <ORG> in <CITATION> , AIR 1960 All 559 and some other decisions, vide <CITATION> , AIR 1959 Mad III: <CITATION> , AIR 1958 Pat 85; <CITATION> , 1962 BLJR 267: (AIR 1962 Pat 468); <CITATION> , AIR 1959 Cal 366 to the effect that <ORG> is now a competent to interfere in the exercise of its revisional jurisdiction with the finding of <ORG> as accepted by the Magistrate in any circumstances, howsoever illegal, improper or other-wise incorrect it may be. But the question for decision is whether this Court will follow the opinion expressed by the learned Judges in these cases.

It is true, no doubt, that against a finding of <ORG>, no appeal review or revision will lie under the Code of Civil Procedure inasmuch as <ORG>, while adjudicating the reference made by tile Magistrate, does not act as <ORG> independently but only records a finding as a tribunal which in itself will not be operative unless it is adapted by the Magistrate, although the latter is bound to act in conformity with it. It is only when such a finding becomes a part of the order of the Magistrate and is integrated into it that it becomes operative and binding upon the parties. The reference to prohibition of appeal, review or revision of the finding of <ORG> is based on the principle that it is not a final order and not binding upon by any party being only an intermediate stage in the proceeding, and as such no appeal, review or revision will lie against it, mainly, under the Code of Civil Procedure and even under the Code of Criminal Procedure for the obvious reason that it is the opinion expressed about certain matters referred to <ORG> by the Magistrate. To infer from this, however that the <ORG> also prohibited the consideration or the propriety or otherwise of the finding by <ORG>, when it has been adopted by the Magistrate and an order passed on it, against which an application in revision has been filed by the party aggrieved, will amount to laying down that the <ORG> by prohibiting an appeal, review or revision under Sub-section (1D) has also by implication included under it Sections 435 and 439 of the Code of Criminal Procedure.

Those two sections confer power upon <ORG> to consider any order passed by the <ORG> subordinate to it to call for the records and rectify any illegality or impropriety in the order which in some cases may also cover a case of rectifying a defective finding of fact, if it is so grave or serious as to merit interference by <ORG>. In my opinion, however, Sub-section (1D) cannot be read in that form. If the <ORG> intended to curtail the power of <ORG> in regard to an order passed under Section 146 , Cr. P. C, there should have been side by side an amendment of Sections 435 and 439 . The same not having been done, Sub-section (1D) must be given a narrow interpretation so as to confine it only to the finding of the Civil <ORG> as such and not to extend it to the position which results when such a finding has been adopted by the Magistrate and order passed upon its basis. It is true, no doubt, that the opinion expressed in some of the decisions is that this will amount to doing indirectly what could not be done directly. In my opinion, however, it will be an unsound application of the aforesaid principle in the present context. The legislature appears never to have intended barring out interference under Sections 435 and 439 . What it really intended to do was that the finding of the Civil <ORG> which, in the absence of Sub-section (1D), might be liable to construction that this ' being a finding of the Civil <ORG>, it might be subject to the provisions of the Code of Civil Procedure, cannot be interfered with. That contingency has been ruled out by Sub-section (1D) so that the matter would now be governed by the Code of Criminal Procedure, It is true, no doubt, that even under the Code of Criminal Procedure, the finding of the Civil <ORG> as such cannot be interfered with, because, in the first place. Code of Criminal Procedure applies to the order of a Criminal <ORG> and a finding of the Civil <ORG> as such cannot be subject to revision under the Code of Criminal Procedure. Moreover, it is an interlocutory order and to allow it to be made subject matter of a revisional jurisdiction would be extremely inconvenient. If that were so, it may well be that <ORG> will interfere with it at one stage under Article 227 or under Sections 435 and 439 , and the same finding accepted by the Magistrate may come up for examination by <ORG>, if, for instance, the jurisdiction of the Magistrate to pass the order strictly in terms of Sections 145 and 146 of the Code of Criminal Procedure, such as the existence of the apprehension of a breach of the peace due to a dispute, may be questioned. Thus, there will be one proceeding under Article 227 of the Constitution and yet another proceeding under Sections 435 and 439 of the Code of Criminal Procedure for another purpose. In my opinion, therefore, such a procedure will be definitely inconvenient and cumbersome. If, on the contrary, the view adopted is that at one stage the finding of the Civil <ORG> is acted upon by the Magistrate, and an order in conformity there with is passed, it becomes an order by a Magistrate and it will be subject to the provisions of Sections 435 and 439 of the Code of Criminal Procedure, the position is rationalised. This was the opinion expressed by Mr. Justice <NAME> of the Madras High <ORG> in the case of <CITATION> , AIR 1960 Mad 169. That was a case in which two applications in revision were filed by the petitioner; one against the finding of the Civil <ORG> and another against the order passed by the Magistrate acting upon that finding. The High <ORG> dismissed both the applications; the one against the Magistrate not on the ground of jurisdiction but on the ground that no point was made out for interference under, Section 439 , and the other one was dismissed on the ground that ho revision application against the finding of the Civil <ORG> as such was maintainable in terms of Sub-section (1D) of Section 146 . But the learned Judge made the following observation : --

"(7) This restriction is but proper because the findings get merged in the decision of the magistrate and all the grounds that can be urged against the finding can be urged against the finalised decision and if there is no such restriction there will be multiplicity of proceedings and possible conflicting revisional orders reducing the whole thing to an absurdity. This wise restriction has been conceived in the best public interests and involves no invasion of the fundamental right or diminution of the paternal and supervisory jurisdiction of this <ORG>".

The decision seems to be in line with the opinion I have expressed above and, to my mind, that is the correct view to be followed in regard to the interpretation of the various sub-sections of Section 146 Cr. P. C.

I may refer in this connection to a rule of legal construction of a statute when there are provisions therein which may appear in some matters to be inconsistent with each other. It is settled that in such a case the principle of harmonious construction is to be followed and only when that is altogether precluded, on account of the plain terms of the relevant provision the question arises which is to prevail by implication. This is known as exposition ex visceribus actus. What Lord <NAME> observed in <NAME> v. <NAME>, (1828) 7 B and C 643, 660, as quoted by <ORG> (5th edition, page 94), is pertinent and runs thus : --

"In construing Acts of <ORG> we are to look not only at the language of the preamble or of any particular clause, but at the language of the whole Act. And if we find in the preamble or in any particular clause an expression not so large and extensive in its import as those used in other parts of the Act, and upon a view of the whole Act we can collect from the more large and extensive expressions used in other parts the real intention of the <ORG>, it is our duty to give effect to the larger expressions, put withstanding the phrases of less extensive import in the preamble or in any particular clause".

Coming now to the facts of the case, the disputed lands are 8 bighas 4 kathas, being plot Nos. 585 (4 bighas 10 kathas from the east) and 592 (14 Kathas from the south) of khata No. 81 and plot No. 471 (3 bighas from the south) of Khata No. 97 of village Mohanpur. According to the case of the petitioners, who were second party, a part of this land was given to <NAME> and his two brothers from whose heirs the first party purported to have purchased the disputed land. The mortgage, however was redeemed and, after redemption, the petitioners took over possession. They continued to be in possession thereafter. The case of the first pasty was that each party was in possession in his own right for a long time. In support of their respective cases, both parties adduced documentary evidence and affidavits sworn by the witnesses produced by them. A pleader Commissioner was appointed to submit his report. The documents filed by them included rent receipts, canal parchas and bill papers of sugarcane. Apart from the above documents, the first party also filed sale deeds and affidavits sworn by four persons. The learned Magistrate of Sasaram who held the enquiry found himself unable to decide the dispute on account of its complicated nature and referred the matter to the Additional Subordinate Judge of Sasaram for a finding. The latter, on a consideration of the evidence led by the parties, recorded a finding in favour of the first party and forwarded it to the Magistrate who accepted it and passed orders in favour of the first party. The second party accordingly has come up in revision against that order.

5. Learned Counsel for the petitioners has not raised any clear question of law, but has raised the point that the finding of the learned Additional Subordinate Judge suffers from non-consideration of certain important documents filed by the petitioners and also errors of record. He has also ignored completely the affidavits filed on behalf of the parties which also would vitiate his finding in terms of a number of decisions of this court.

6. In support of his first contention, he has placed before us a short history of the various transactions relating to the disputed property. Khata Nos. 81 and 97 measure 61 bighas and 4 bighas respectively. Out of this area, 23 bighas were not given in mortgage, and the mortgage which was executed in 1895 in favour of <NAME> related only to 40 bighas. A rent suit was instituted by the landlord in 1895. The mortgagees were compelled to pay the entire arrears of rent and they became statutory mortgagees of the entire khatas 81 and 97 under Section 171 of the Bengal Tenancy Act. They got themselves recorded as raiyat in respect of the entire khata. In 1918, a suit was instituted by <NAME> and <NAME> for redemption and for a declaration that a further rent sale of the two holdings in 1905 during the subsistence of the mortgage interests was a fraudulent rent sale and the properties which were purchased by the first party did not lose their character as mortgage interest. The suit was thus framed as a composite suit one prayer of which was for redemption and the other was for declaration. The prayer for redemption was, however, withdrawn but that for declaration was pressed and the suit was dismissed. The mortgagors contemplated to prefer an appeal against that decision but, in the meantime, the parties came to an amicable settlement and on the 9th May, 1920, the terms of the compromise were drawn up by which the petitioners got back their 23 bighas and the mortgagees remained in possession of the remaining area as such. This continued up to 1951 when a part of the land was redeemed by a registered document. Another suit was instituted again for redemption of the remaining area. The suit was decreed. On appeal taken from that decision, however, the judgment of <ORG> was reversed.

Then a second appeal was preferred. This also was compromised. A third suit, however, still remained pending. According to the petitioners, the disputed plots formed part of the 23 bighas of land which was not given in mortgage but in respect of which a statutory mortgage sprang up which, however, again, was terminated by compromise dated the 9th of May, 1920. <NAME>, grandson of <NAME>, the original mortgagee, sold 2 bighas 2 kathas out of the land comprised in plot No. 392, and 12 kathas and 1 bigha 10 kathas out of plot No. 471 comprised in khata No. 97, to <NAME> and <NAME>, first party, on the 18th of February, 1950. <NAME> and <NAME> applied to <ORG> for mutation of their names in respect of this area of 2 bighas 12 khathas, but their application was rejected. The disputed plots, as I have mentioned above, are plot Nos. 471, 585 and 592, measuring 8 bighas. On the 3rd of February, 1960, <NAME>, one of the grandsons of <NAME>, executed a sale deed in favour of <NAME> nephew of <NAME>, opposite party No. 1, relating to 18 kathas ro dhurs out of plot No, 585 of khata No. 81. On the same date, <NAME> executed another sale deed in favour of <NAME>, opposite party No. 11. On the same date, <NAME>, another grandson of <NAME>, executed a sale deed in favour of opposite party Nos. 1, 11 and 13, namely, <NAME>, <NAME> and Collector <NAME>, out of plot Nos. 585 and 471; 5 bighas 10 kathas out of plot No. 585 and one bigha out of plot No. 471. On the same date, <NAME> executed a sale deed in favour of Collector <NAME> comprising 10 kathas out of plot No. 585. In 1959, <NAME> <NAME>, had executed a sale deed in favour of <NAME>, opposite party No. 11, conveying 15 kathas out of plot No. 585, khata No. 81.

Mr. <NAME> appearing for the petitioners urged that all these sale deeds which, apparently, lend strong support to the case of the opposite party should have been completely discarded inasmuch as once it was held that under the compromise dated the 9th of May, 1920, 23 bighas of land were put back in possession of the mortgagors represented by the petitioners and, further that the disputed lands are comprised in those khatas, any subsequent sale deed by the family of the mortgagees relating to the same property is wholly ineffectual for the purpose of passing title to the vendees or for affecting the possession of the mortgagors. The learned Additional Subordinate Judge has lost sight of this aspect of the case. The deed of compromise (Saraite safainama), however, is an unregistered document and Mr. <NAME> has contended that it has been referred to in some other documents later on. Mr. <NAME> has drawn our attention to the following documents which, according to him, have not been considered at all:

(1) The report of the pleader commissioner who found the disputed plots amalgamated with the admitted plots of the petitioners. The report was submitted on the 26th of July, 1960.

(2) Report of the Canal S. D. O. dated the 18th of January, 1954. That also showed that plot No. 584 and plot No. 585 were amalgamated at least in 1954, if not earlier.

(3) Survey Register of Cane Cooperative Society to show that from 1940-41 to 1953 <NAME>, petitioner, grew sugarcane over these plots.

(4) The application of the first party in 1952-53 for mutation of their names in the canal papers in regard to plot No. 585, which, was rejected.

(5) The application by <NAME> to have his name mutated in regard to plot Nos. 571 and 592, also rejected.

(6) The application of opposite party No. 4 made before the Canal S. D. O. on the 15th September, 1950. That also was rejected.

(7) The Khatian showed that plot No. 471 is part of khata No. 97 and the receipts which are filed in respect of khata No. 81 cannot relate to the land under khata No. 97.

Learned Counsel has also contended that the opposite party has not filed any canal parchas from the period 1950 onwards, whereas the petitioners have filed them. He has also contended that out of the affidavits filed on behalf of the opposite party, which the learned Subordinate-Judge has not considered, the affidavits of <NAME> and <NAME> are of no value, as they are partisan witnesses and they are bound down along with the members of the opposite party in the proceeding under Section 107 , Code of Criminal Procedure. As for the affidavits on behalf of the petitioners, there is one by a police constable who was deputed to the village for the personal safety of the petitioners who apprehended breach of the peace from the side of the opposite party.

7. Mr. <NAME> for the opposite party has contended that there are two Bajidawas which do not mention the names of the petitioners as having any interest in the disputed land; but it is incorrect. The finding of the learned Additional Subordinate Judge is that these Bajidawas, dated the 28th July, 1959, and 6th January, 1960, were executed after the executants parted with their interest in the disputed land. The <ORG> also does not show the plot number. The field bujharat has been in favour of the first party. In my opinion, the documents in favour of the parties are of a very conflicting character. The affidavits filed on their behalf also, in the circumstances, cannot improve the position, as a result it cannot be held that the finding of the learned Additional Subordinate Judge is necessarily vitiated. It may be that there are certain errors in the finding and the consideration of the evidence is not as full and clear as it should be. For that reason, we gave liberty to the learned Counsel for the parties to place before us an analysis of the very large number of documents filed by them in support of their respective cases. In view of the fact that the -documents are of a conflicting nature, and of considerable weight for either party, I find myself unable to interfere with the findings of the learned Additional Subordinate Judge as was laid down by <NAME>, C. J. in <NAME> v. <NAME>, 35 Cal WN 374 : (AIR 1931 Cal 619). It may be mentioned that the learned Counsel for the opposite party placed considerable reliance on the field bujharat which was prepared only a few months before the initiation of the proceedings under Section 144 , C. P. C. The <ORG> has amended Sections 145 and 146 of the Code of Criminal Procedure for the sake of speedy disposal of these proceedings and to send the case back to the Court below, in the circumstances of this case, for a decision now, would mean further delay.

8. In the result, the application is dismissed and the rule is discharged. If the petitioners are aggrieved by the order, it will be open to them to resort to <ORG> by a regular suit for declaration of title and recovery of possession.

Sahai, J.

9. I agree that there is no merit in this application, and it should be dismissed. I find it necessary, however, to express my views on some of the points which arise for determination in this case.

10. The points which this Bench has to consider may be formulated as follows:

1. Does Sub-section (1D) of Section 146 of the Code of Criminal Procedure, which is to the effect that no appeal, review or revision shall He against a finding of <ORG> on a reference under the section, apply only so long as the Magistrate has not disposed of the proceeding under Section 145 in conformity with the decision of <ORG>?

2. Can <ORG> interfere with the finding of <ORG> at any stage in exercise of its power of superintendence under Article 227 of the Constitution?

11. As to the first question, my learned Brother <NAME>, <NAME> has expressed the view that the provisions of Sub-section (1D) of Section 146 bar an appeal, review or revision under the Code of Civil Procedure, and even under the Code of Criminal Procedure, only so long as the Magistrate does not pass his order in conformity with the decision of <ORG>. I have considered the matter from several aspects; but, with respect, I find myself quite unable to agree with this view.

12. It is necessary, first, to consider the position of <ORG> while hearing a reference under Section 146 and the nature of the proceeding before it. It is not possible, in my opinion, to equate the position of <ORG> with an amicus curiae. The meaning of the expression 'amicus curiae' as given in Webster's New International Dictionary; is:

"a friend of <ORG>; hence, in practice, a bystander or party who suggests or states some matter of law for the <ORG>'s assistance".

A note appended under this is to this effect:

"An amicus curiae is heard only by the leave and for the assistance of the <ORG>, and upon a case already before it. He has no control over the suit, and no right to Institute any proceedings therein".

It is thus manifest that an amicus curiae has no legal position or right. He merely assists the <ORG> by pointing out the law or evidence at the request of the <ORG>, which is free to accept or reject his opinion. Under Section 146 of the Code of Criminal Procedure, the Civil <ORG> has a definite statutory position. Possibly, the legislature has provided for reference to the Civil <ORG> on the basis that the presiding officer of the Civil <ORG>, who devotes himself exclusively to judicial work, has more experience in judicial matters than a Magistrate, who has multifarious kinds of duties, including judicial work and administrative work. Furthermore, it is not open to the Magistrate either to accept or to reject the finding of the Civil <ORG>. He is bound to pass orders in conformity with the decision of the Civil <ORG>.

13. The nature of the proceeding before <ORG> continues to be criminal, and does not become civil. As stated by <NAME>, J. in <CITATION> , AIR 1958 Pat 308, "......the proceeding even on reference made to <ORG> on the point of possession retains its old moorings and does not change its character from a criminal proceeding to a civil proceeding and is as such all along kept in the seisin of the criminal <ORG> for its final conclusion".

With respect, I agree with this observation as well as the reasons given therefor.

14. In my judgment, the only interpretation which can be put upon Sub-section (1D) is that the finding of <ORG> cannot be challenged in that <ORG> or in a superior <ORG> at any stage. The first line of reasoning which leads me to this conclusion is very simple. Sub-section (1B) provides for <ORG> to conclude the inquiry and transmit its finding to the Magistrate and for the Magistrate to dispose of the proceeding under Section 145 in conformity with the decision of <ORG>. The Magistrate's function, therefore, is only to declare the possession of that party whose possession has been found by <ORG>. Even after he has given such a declaration, the finding of <ORG> remains the finding of that <ORG>, and does not become the finding of the Magistrate. The Magistrate does pass the final order; but he cannot give any finding of his own, vide AIR 1959 Cal 366. There is thus no question of the finding of <ORG> merging into the "finding" of the Magistrate.

15. Sub-section (1D) speaks of the finding of <ORG>, and, if the legislature had meant that that finding would become subject to appeal, review or revision after the Magistrate passes his order, there could be no difficulty in adding, at the end of the sub-section, the words 'until the Magistrate passes his final order. Addition of those words was necessary also because an earlier Sub-section, i.e. (1B), has provided for the passing of the final order by the Magistrate. In the absence of those words, it is not possible for me to hold that the finding remains sacrosanct so long as the Magistrate does not pass his final order but becomes subject to revision by <ORG> like any other order of an inferior <ORG> as soon as he passes such order.

16. The question can be considered from another point of view. I have already observed that the proceeding before <ORG> retains its nature as a criminal proceeding. No appeal, review or revision under the Code of Civil Procedure could, therefore, be entertained against the finding of <ORG>, even if Sub-section (1D) had not existed. No appeal against that finding could lie even under the Code of Criminal Procedure because Section 404 of that Code lays down that no appeal would lie from any judgment or order of <ORG> except as provided by the Code or any other law for the time being in force. Ho section of the Code nor any other law provides for an appeal against the finding of <ORG> on a, reference under Section 146 . There is no provision in the Code , giving power to <ORG> to review its own judgment. Unless the power of review was specifically given to <ORG>, therefore, it could not review its finding on a reference of the kind in question. A revision could also not lie under Sections 435 and 439 because Section 435 speaks of the record in a proceeding before an inferior Criminal Court being called for and examined, and Section 439 speaks of orders which may be passed in a proceeding, the record of which has been called for by <ORG> itself or has been reported for orders.

At the stage when <ORG> arrives at its finding and before the Magistrate passes his final order, the record is not before an inferior <ORG>. Hence, powers under Sections 435 and 439 cannot be exercised. Even if it is assumed, however, that a criminal revision lies because the proceeding can be said to be one before an inferior <ORG> on the ground that the Magistrate retains seisin over it even while the reference is pending before <ORG> all that was necessary to provide for under Sub-section (1D) was to bar a criminal revision against the finding of <ORG>. Instead of doing that, the legislature has used very strong language by saying that no appeal, review or revision would lie. If the only purpose was to bar a criminal revision against the finding of <ORG> until the Magistrate passed his final order, it would mean that the legislature unnecessarily used very emphatic language to achieve very little.

17. It is said that, if the legislature intended by enacting Sub-section (1D) to curtail <ORG> power of revision, there should have been a corresponding amendment of Sections 435 and 439 . I am unable to agree. There is, in my opinion, not the slightest doubt that a revision lies against the final order of the Magistrate because there is no prohibition in Section 146 against a petition for revision being entertained from the Magistrate's order. All that Sub-section (1D) means is that the finding of <ORG> will not be liable to be challenged before that Court or a superior Court. In view of the amendment introduced in Sections 145 and 146 by Act 26 of 1955, there are three different stages in a proceeding under Section 145 . At the first stage, the Magistrate draws up a proceeding under that section when be is satisfied that a dispute likely to cause a breach of the peace exists concerning any land or water or its boundaries. He then proceeds under Section 145 , and, if he can find possession with either party as required by Sub-section (4) of that section, he declares that party to be in possession. It is only if he is of opinion that none of the parties is in possession or if he is unable to decide as to which party is in possession that he can make a reference to <ORG>. The first stage is over when the reference is made. The second stage is the inquiry before <ORG> ending with a finding arrived at by that Court relating to possession. The third stage starts when the finding goes to the Magistrate. He has then to pass final order in conformity with the finding. <ORG> power to examine the proceedings before the Magistrate in the first and the third stages cannot be doubted. All that Sub-section (1D) says is that the finding of <ORG> will not be liable to be challenged. It is thus open to <ORG> to interfere if the Magistrate's order is not in conformity with <ORG>'s finding or if there is some illegality in drawing up the proceeding or in making the reference. The restriction against interference with <ORG>'s finding is a special provision, and it is a well-established principle that a special provision controls a general provision. It was not, therefore, necessary to amend Sections 435 and 439 of the Code.

18. I may mention another point. The <ORG> amended Sections 145 and 146 by Act 26 of 1955 with the purpose of expediting disposal of a proceeding under Section 145 . It is for this reason that parties' right to examine witnesses has been taken away, and they have now to file affidavits instead in a proceeding under Section 145 . Besides, the legislature has expressed its hope in Sub-section (4) of Section 145 that the Magistrate would as far as practicable, conclude the inquiry within a period of two months. Under Section 146 , as it stood previously, the Magistrate had to attach the disputed property in case he was unable to find which of the parties was in possession. That has been done away with. In view of the amendments, the matter has to be referred to <ORG>, and the proceeding under Section 145 has to be terminated in accordance with the finding of <ORG> which has to conclude the inquiry, as far as practicable, within a period of three months. Sub-section (1E) of Section 146 provides that the order passed under Section 146 would be subject to a subsequent decision of <ORG> of competent jurisdiction. In view of that provision, the finding of <ORG> on a reference is not conclusive for all time. That being so, I do not think that there is any hardship to any party if the provisions of Sub-section (1D) are construed to mean that the finding of <ORG> cannot be challenged in criminal revision at any stage.

19. In my opinion, <ORG> continues to have power to interfere with the finding of <ORG> in exercise of its power of superintendence under Article 227 of the Constitution, if a case is made out for exercise of that power. I do not think that it will be inconvenient or cumbersome for any party to seek his remedy against an order passed by the Magistrate under Section 145 on the basis of <ORG>'s finding. He can file his petition under Sections 435 and 439 as well as Article 227 of the Constitution. <ORG> will then interfere under Article 227 with the finding of <ORG> only if a case for interference under that Article is made out; but it will exercise its ordinary power of revision under Sections 435 and 439 in so far as the proceedings before the Magistrate are concerned. I do not apprehend any difficulty if this procedure is followed.

20. Views similar to those which I have expressed above on the interpretation of Sub-section (1D) have been taken by <NAME>, J; in AIR 1959 Mad 111. In that case, the petition for revision was filed against the final order of the Magistrate. The learned Judge observed that no appeal, review or revision could lie against the finding of <ORG>. He further observed that <ORG> could not go into the correctness of the finding of <ORG> because that would amount to doing indirectly what was prohibited directly. This reasoning also supports the conclusion which I have reached. In AIR 1960 Mad 169, <NAME>, J. has relied upon the decision in <NAME> case, AIR 1959 Mad 111, on the point that no revision lies against the finding of <ORG>, but has made certain observations which indicate that the restriction applies only so long as the finding of <ORG> does not "get merged in the decision of the Magistrate". With great respect, I am unable to accept the observation as correct. As I have already said, the. Magistrate does not arrive at any finding, and there is no question of merger of findings. All that happens is that the Magistrate declares one party or the other to be in possession in accordance with the finding of <ORG>, which continues to retain its separate identity.

21. I may also refer to a Bench decision of this Court in 1962 BLJR 267: (AIR 1962 Pat 468) in which I delivered the judgment of the Bench. The conclusions which I have reached in that decision are in accord with the conclusion which I have reached in this case.

22. Though the finding of <ORG> is, under Sub-section (1D), not subject to appeal, review or revision, the constitutional power of superintendence given to <ORG> under Article 227 cannot be held to have been taken away. I may, refer only to AIR 1952 Cal 526 in this connection. Under Section 9(1) of the West Bengal Bargadars Act, it was provided that no award or order of a <ORG> or of an Appellate Officer shall be questioned in any <ORG>. The High <ORG> was included under the definition of '<ORG>'. Their Lordships observed that those provisions could not prevail against the Constitution, and that <ORG> could, in suitable cases, pass a necessary order in exercise of its power under Article 227.

23. It has been argued that <ORG> ought not to pass an order in exercise of its power under Article 227 , if a suitable alternative remedy is available. I agree with my learned Brother <NAME>, J. that there is no inflexible rule that <ORG> cannot issue a writ or pass an order in exercise of its power under Article 227 simply because an alternative remedy is available. I also agree that <ORG> has discretion to entertain a petition for issue of a writ or order notwithstanding the existence of such an alternative remedy in suitable cases. In the present case, I have held that, in a criminal revision arising out of a final order of the Magistrate, <ORG> cannot examine the correctness of <ORG> finding. This remedy is, therefore, not open to the aggrieved party. The only other remedy is provided in Sub-section (1E) of Section 146 . In pursuance of that remedy, an aggrieved party has to institute a suit. In my opinion, <ORG> cannot refuse to interfere in exercise of its power under Article 227 , if a case is made oat for exercise of such power, only on the ground that, by means of a lengthy remedy of a suit, the aggrieved party can get his redress. I wish only to add that, as a rule, <ORG> will decline to interfere under Article 227 before the Magistrate passes his final order on the ground that it will be inconvenient and duplication of work to entertain one petition before and one petition after the Magistrate passes his final order in conformity with the finding of <ORG>.

24. The limits of exercise of powers under Article 227 are well settled. In AIR 1960 SC 137, their Lordships have observed about the power under Article 227 as follows:

"However wide it (the power) may be than the provisions of Section 115 of the Code of Civil Procedure, it is well established that <ORG> cannot in exercise of its power under that section assume appellate powers to correct every mistake of law. Here there is no question of assumption of excessive jurisdiction or refusal to exercise jurisdiction or any irregularity or illegality in the procedure or any breach of any rule of natural justice. If anything it may merely be an erroneous decision which, the error not being apparent on the face of the record, cannot be corrected by <ORG> in revision under Section 115 of the Code of Civil Procedure or under Article 227".

25. For the reasons given above, I would answer the first question which I have formulated by saying that the bar applies at all stages and the second question by saying that <ORG> can and would interfere with <ORG> finding in appropriate cases under Article 227 after the Magistrate passes his final order in accordance with that finding. We could, therefore, interfere with the finding of the learned <NAME> in this case, if a case for exercise of our power under Article 227 of the Constitution had been made out. My learned Brother <NAME>, <NAME> has discussed the merits, and if is perfectly clear that no such case has been made out. Hence, I agree with the order proposed.

<NAME>, J.

26. I have had the advantage of perusing the judgments of my esteemed brethren <NAME>, <NAME> and <NAME>, <NAME> and I agree that Criminal Miscellaneous No. 100 of 1962 should be dismissed.

27. I would, however, add a few words of my own. The important question for consideration is whether <ORG> can interfere with the finding of <ORG> under Sections 435 and 439 of the Code of Criminal Procedure after the finding is adopted by the Magistrate and the final, order is passed.

28. Sub-section (i) of Section 146 Cr. P. C. provides for a reference to <ORG> for a decision of the question whether any or which of the parties was in possession, if the Magistrate is of the opinion that none of the parties was then in such possession or is unable to decide as to which of them was then in such possession of the subject of dispute.

29. Sub-section (1A) lays down how <ORG> shall dispose of the reference and decide the question of possession. Sub-section (1B) is important. It directs <ORG> to conclude the inquiry within three months of the appearance of the parties before it and transmit its finding to the Magistrate and the Magistrate shall dispose of the proceeding in conformity with the decision of <ORG>. Sub-section (1C) provides for costs of the reference. Then follows the controversial provision incorporated in Sub-section (1D). It provides that no appeal from nor any review or revision of any such finding of <ORG> shall He. It will be observed that this provision does not impose any bar to any review or revision of the order of the Magistrate passed under Sub-section (1B). It only provides that the finding of <ORG> (and not the order of the Magistrate) shall not be questioned in review or revision.

30. Another noteworthy thing is that no alteration has been made in Sections 435 and 439 with the result that the powers of <ORG> under these sections remains unaffected. There is, therefore, no reason to bar a revision from the order of the Magistrate passed under Sub-section (1B). It will also be observed that if the Magistrate himself decides the question of possession without reference to <ORG> and passes order under Section 145 , Criminal Procedure Code , declaring the possession of one or the other party, it is beyond controversy that that order is open to revision. There appears to be no foundation for distinction between an order passed by a Magistrate under Sub-section (4) of Section 145 and Sub-section (1B) of Section 146 of the Code of Criminal Procedure. It is recognised that a revision may lie even against the order of the Magistrate under Sub-section (1B) of Section 146 , Cr. P. C. but it is said that the revision in such a case must be limited in scope but there would appear no ground for such a differentiation. To say that powers under Sections 435 and 439 can be exercised without limitation in respect of an order passed under Sub-section (4) of Section 145 and for a limited purpose under Sub-section (1B) of Section 146 is to introduce substantial qualification in Sections 435 and 439 , which the <ORG> in its wisdom did not think it proper to do.

31. It is argued that it would be anomalous to question the finding of <ORG> after it is integrated in the order of the Magistrate when appeals from and review or revision of such an order is completely barred. This argument sounds plausible but lacks substance. Taking Section 146 , Cr. P. C. as a whole, the intention of the <ORG> appears to be to bar revision, review or appeal at different stages of the same proceeding. It is, manifest that the <ORG> has not expressly' barred a revision or review of the order of the Magistrate under Sub-section (1B). To permit revision against the finding of <ORG> at one stage and also against the order of the Magistrate at another stage would have frustrated the very object of the amendment," namely, to shorten the duration of the proceeding under Section 145 , Cr. P. C. This is so because one function is assigned to the civil <ORG> and the other to the Magistrate. Therefore, in my opinion, when a revision is preferred against the order of the Magistrate under Sub-section (1B), not only the operative order of the Magistrate but the entire proceeding including the findings of the civil <ORG> are before the <ORG> and, therefore <ORG> can, in appropriate cases, interfere with the findings of the civil <ORG>, if they are in flagrant violation of the well recognised principles of law. Such a construction not only harmonises the different provisions of Sections 145 and 146 , but also dispenses with the limitations sought to be imposed upon the powers of <ORG> under Sections 435 and 439 . Once we proceed to lay down the qualification, it would be difficult to draw a line where to stop. It is true that this <ORG> will not ordinarily "interfere with a considered finding of the civil <ORG>. At the same time, it is difficult to prescribe the exact principles which may guide <ORG> in disposing of the matters in all such cases.

32. As regards application of Article 227 of the Constitution of India, it is altogether a different question The powers of <ORG>, cannot be taken away or abridged by a Legislative enactment; and, as such, Sub-section (1D) of Section 146 has not and cannot have that effect. <ORG>, however, as a rule, will not interfere with the finding of <ORG> merely on the ground of non-consideration of some evidence or some irregularity found to have been committed by <ORG>. It is only in exceptional cases of flagrant violation of legal principles and that also after the Magistrate has passed final orders in conformity with such finding that <ORG> will interfere. Otherwise, such an interference at an earlier stage will lead to duplication and prolongation of the proceedings which the <ORG> has intended to avoid.

33. For these reasons, I agree with the views expressed by my esteemed brother <NAME>, <NAME>


JUDGMENT <NAME>, C.J.

1. Challenge in this application for a writ of certiorari is to the order made by the <ORG> constituted under Section 57-A of the Orissa Land Reforms Act (hereafter referred to as the 'Act') accepting an application of opposite parties 4 to 7. The ground on which challenge has been laid is that the application under Sub-section (3) of Section 57-A of the Act was barred by limitation and the <ORG> had, therefore, no jurisdiction to entertain the application and give relief on its basis,

2. Section 57-A (3) of the Act provides:--

"Any trustee or trustees desiring to get any trust declared to be a religious or charitable trust of a public nature under Sub-clause (e) of Clause (24) of Section 2 may make an application to the <ORG> in such form and containing such particulars as may be prescribed.

Provided that no application under this sub-section shall be maintainable if,--

(a) xx xx xx xx (b) it is filed after the date of expiry of a period of six months from the date of commencement of the Orissa Land Reforms (Second Amendment) Act, 1976: XX XX XX XX."

The Amending Act of l976 referred to above came into force on 25-10-1976. The application of the opposite parties was filed on 20-2-1978. The opposite parties-applicants moved the <ORG> to condone the delay by making an application under Section 5 of the Limitation Act as admittedly the last date for presentation of the application was 25-4-1977 in view of the Proviso quoted above and the application was made about 10 months beyond the last date.

The petitioners have contended that Section 5 of the Limitation Act had no application and the <ORG> had, therefore, no jurisdiction to condone the delay. Ordinarily, the exercise of discretion vested in a court for condoning delay would not be the subject-matter of an application for a writ of certiorari, but since the challenge is on the ground of want of jurisdiction on the footing that Section 5 of the Limitation Act has no application to a proceeding of this type, the matter requires examination.

3. Section 29(2) of the Limitation Act of 19163 provides:--

"Where any special or local law prescribes for any suit, appeal or application, a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purchase of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, be previsions contained in Sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law."

(Underlining is ours) The relevant aspect for consideration, therefore, is whether the Orissa Land Reforms Act expressly excludes application of Sections 4 to 24 of the Limitation Act.

Admittedly, the relevant Proviso to Section 57-A of the Orissa Land Reforms Act does not expressly exclude the application of Section 4 to 24 of the Limitation Act. Reliance is placed by the petitioners' counsel on two decisions of <ORG> in support of his contention that no express exclusion is necessary and on a construction of the Statute and its spirit it is open to the <ORG> to examine and come to a conclusion whether the provisions of the Limitation Act are applicable or their application stands excluded. The first case on which reliance has been placed is the case of <CITATION> , AIR 1974 SC 480 where a Bench of 3 learned Judges was considering whether the limitation provided in the Representation of the People Act constituted express exclusion of Sections 4 to 24 of the Limitation Act. In paragraph 17 of the judgment, the <ORG> :

"............ It is contended before us that the words "expressly excluded"

would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. As usual, the meaning given in the dictionary has been relied upon, but what we have to see is whether the scheme of the special law, that is, in this case the Act, and the nature of the remedy provided therein are such that the <ORG> intended it to be a complete code by itself which alone should govern the several matters provided by it. If on an examination of the relevant provisions it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our view, even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the <ORG> to examine whether and to what extent the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation." The <ORG> again referred to the several provisions of the Representation of the People Act and came to the conclusion:--

"For all these reasons, we have come to the conclusion that the provisions of Section 5 of the Limitation Act do not govern the filing of election petitions or their trial and in this view, it is unnecessary to consider whether there are any merits in. the application for condonation of delay."

The same question arose again before another 3-Judge Bench of <ORG> in the case of <CITATION> &. Plants, AIR 1975 SC 1039, and on this occasion the point arose with reference to application of Section 14 of the Limitation Act in the matter of filing of a revision under the Taxing Act. Section 10(3B) of the Taxing Act provides (at p. 1043):--

"The application under Sub-section (3) shall be made within one year from the date of service of the order complained of but <ORG> may on proof of sufficient cause entertain an application within a further period of six months."

The <ORG> then proceeded to observe (at p. 1043):--

"Three features of the scheme of the above provision are noteworthy. The first is that no limitation has been prescribed for the suo motu exercise of its jurisdiction by <ORG>. The second is that the period of one year prescribed as limitation for filing an application for revision by the aggrieved party is unusually long. The third is that <ORG> has no discretion to extend this period beyond a further period of six months even on sufficient cause shown. As rightly pointed out in the minority judgment of <ORG>, pendency of proceedings of the nature contemplated by Section 14 (2) of the Limitation Act may amount to a sufficient cause for condoning the delay and extending the limitation for filing a revision application, but Section 10 (3-B) of the Sales Tax Act gives no jurisdiction to <ORG> to extend the limitation, even in such a case, for a further period of more than six months.

9. The three stark features of the scheme and language of the above Provision unmistakably show that the legislature has deliberately excluded the application of the principles underlying Sections 5 and 14 of the Limitation Act, except to the extent and in the truncated form embodied in Sub-section (3-B) of Section 10 of the Sales Tax Act. Delay in disposal of revenue matters adversely affects the steady inflow of revenues and the financial stability of the <ORG>. Section 10 is therefore, designed to ensure speedy and final determination of fiscal matters within a reasonably certain time-schedule xx xx xx XX XX XX XX

11. Be that as it may, from the scheme and language of Section 10 , the intention of the <ORG> is to exclude the unrestricted application of the principles of Sections 5 and 10 of the Limitation Act (obviously, a mistake for Section 14 ) is manifestly clear. These provisions of the Limitation Act which the legislature did not, after due application of mind, incorporate in the Sales Tax Act , cannot be imported into it by anology. An enactment being the will of the legislature, the paramount rule of interpretation, which overrides all other, is that a statute is to be expounded "according to the intent of them that made it." "The will of the legislature is the supreme law of the land, and demands perfect obedience." (See Maxwell on Interpretation of Statutes, 11th Edn., pp. 1, 2 and 251). "Judicial power is never exercised", said <NAME> of the United States, "for the purpose of giving effect to the will of the Judges; always for the purpose of giving effect to the will of the <ORG>; or in other words, to the will of the law."

12. If the legislature wilfully omits to incorporate something of an analogous law in a subsequent statute, or even if there is a casus omissus in a statute, the language of which is otherwise plain and unambiguous, the <ORG> is not competent to supply the omission by engrafting on it or introducing in it, under the guise of interpretation by analogy or implication, something what it thinks to be a general principle of justice and equity."

These authorities clearly indicate that there is no necessity for express exclusion and it is open to the <ORG> on examining the provisions of a Statute to find out whether the application of all or any of the provisions of Sections 4 to 24 of the Limitation Act stands excluded. The Orissa Land Reforms Act, as its preamble shows, has been enacted to bring progressive legislation relating to agrarian reforms and land tenures consequent on gradual abolition of intermediary interest and to confer better rights on agriculturists and to ensure increase in food production. Several provisions have been made in the Act with a view to giving effect to this declared intention of the legislature. The Act makes clear provision for conferring higher rights on the real cultivator. Section 2(24) makes provision for land owners to be declared as "privileged raiyats" and in respect to their lands, the benefits provided under the Act are not to apply. Section 57-A makes provision for declaration of certain trusts to be religious or charitable trusts of public nature and in the event of such declaration, the benefit provided under the Statute is not to apply to persons in cultivation of lands of such trusts. The Act , therefore, has come with the time-schedule for effecting these reforms with a view to conferring higher rights on the true cultivators, put an end to absentee landlords, fix ceiling units in respect of agricultural holdings, determine surplus lands and settle the same with landless people. An analytical examination of the Act leaves no scope for doubt that the legislative intention in formulating the law is to achieve the contemplated results at the earliest opportunity. The procedure applicable to the proceedings has been simplified. It is thus apparent that the principle indicated in the case arising under the Uttar Pradesh Sales Tax Act has full application and the conclusion becomes irresistible that application of Section 5 of the Limitation Act by necessary intendment has been contemplated.

The proviso to Section 57-A (3) is in the negative form holding out the legislative mandate of providing a six-month period. The provision is indicative of the anxiety of the legislature to fix a clear time limit for making of an application and not to allow the proceeding to originate at a time beyond the period thus provided.

Counsel for the opposite parties 4 to 7 relied upon a Bench decision of this Court in the case of <CITATION> , AIR 1981 Ori 180 in support of the proposition that Section 29(2) of the Limitation Act would be applicable. This Court in the reported decision was examining the application of Section 5 of the Limitation Act to the provisions in Section 18-B of the Orissa Money Lenders Act and came to the conclusion that as no application was to be made under Section 18-B of the Money Lenders Act, the question of applying Sections 4 to 24 of the Limitation Act did not arise for consideration. Nothing has been said in the said decision which would support the stand of the opposite parties here.

Reliance was next placed on a Full Bench case of <ORG> in the case of <CITATION> , AIR 1960 Ker 82. The Full Bench was considering the application of Section 12 of the Limitation Act to an appeal filed under Section 8-A of the Kerala Private Forests (Vesting and Assignment) Act, 1971 and observed (at p. 85):--

"7. Section 8 of the Act enables a person who claims that the land is not a private forest or that the private forest has not vested in the <ORG>, to invoke the jurisdiction of the <ORG> by applying to it for a decision of that dispute. From a decision given by the <ORG> under Section 8 , an appeal lies to this Court under Section 8-A of the Act. Under Rule 11 of the Kerala Private Forests (<ORG>) Rules, 1972, in all proceedings before the <ORG>, it is required to follow the procedure prescribed as regards applications in the Civil P. C. 1908, and the Rules made thereunder as far as they can be made applicable except to the extent otherwise provided in the Act or the Kerala Private Forests (<ORG>) Rules, 1972. Though the Act contains no provision which states the manner in which the decision under Section 8 is to be rendered, since under Rule 11 of the Kerala Private Forests (<ORG>) Rules, 1972, the procedure to be followed is that prescribed in the Civil P. C., 1908, as regards an application, and this decision is an appealable decision, the <ORG> has to give its reasons in support of that decision, either in a separate document or in the same document which contains its decision. That decision is not one determining the rights of parties with regard to any matter in controversy in a suit and therefore is not a decree falling within the definition of that term in Section 2(2) of the Code; it can, therefore, be characterised only as an order as defined in Section 2(14) of the Code, that is, the <ORG>'s formal expression of a decision which is not a decree. The statement of reasons given by the <ORG> is a judgment.

8. In view of what is said above, the order under appeal is a composite document--a judgment-cum-an order--falling within the definition of the words "judgment" and "order" in Sub-sections (9) and (14) of Section 8 of the Code of Civil Procedure, 1908. The appellant is entitled to exclude the time requisite for obtaining 3 copy of the order (decision) of the <ORG> appealed from under Section 12 (2) of the Limitation Act , 1963, and the time requisite for obtaining a copy of the judgment (Statement of Reasons given by the <ORG>) on which its order is founded under Sub-section (3) thereof. In so far as the <ORG>'s decision and the Statement of Reasons therefor are contained in the same document, the time required to obtain a copy of that document is to be excluded in computing the period of limitation of this appeal, and so determined, as stated in the beginning of this judgment, this appeal is within time."

We do not think the observations of <ORG> have any relevance so far as the point in issue is concerned.

4. On the analysis of the matter as indicated above, we are of the view that the application of Section 5 of the Limitation Act stood excluded and the <ORG> had no jurisdiction to condone the delay as the application had been made beyond the period indicated in the Proviso to Section 57-A (3) of the Act. It is unnecessary to examine the other aspects raised in the writ application but not pressed at the time of hearing.

5. The writ application is allowed and the order of the <ORG> is quashed. There would be no order for costs.

<NAME>, J.:--I agree.


PETITIONER: <ORG>. Vs. RESPONDENT: UNION OF INDIA AND OTHERS DATE OF JUDGMENT21/12/1989 BENCH: RAMASWAMI, V. (J) II BENCH: RAMASWAMI, V. (J) II RANGNATHAN, S. KULDIP SINGH (J) CITATION: 1990 AIR 689 1989 SCR Supl. (2) 570 1990 SCC (1) 400 JT 1989 Supl. 432 1989 SCALE (2)1417 ACT: Central Excise Tariff Act --Item No. 29-A--Air Condition- ing and refrigeration equipment--Levy of excise duty under Clause (3) of Item 29A. HEADNOTE: The appellant-company was engaged in the manufacturing of airconditioning and refrigeration equipment under a proper licence. On January 21, 1970 the appellant cleared from the factory cooling coils, condensers and compressors and supplied the same to <ORG> Ravi Cold Storage, Ahmedabad for putting up a cold storage and paid duty of Rs.13,547.20 P in respect thereof. Again on January 21, 1969, the appel- lant cleared from the factory various parts of refrigerating and air-conditioning appliances and machinery for an Ice factory plant to one <ORG> <ORG>, Ahmedabad and paid a duty of Rs. 19,336.87P. Both the aforesaid goods were manufactured at the appellant's factory. Thereafter the appellant filed two refund applications of the said excise duty before the Assistant Collector of <ORG>, contending that the refrig- erating and air-conditioning appliances which they had removed on the aforesaid dates were not excisable goods failing under Tariff Item No. 29A(3). The Assistant Collec- tor of <ORG> rejected both the applications holding that the assessment was correctly made. The appellant-company preferred two appeals against these orders before the Col- lector of <ORG> and <ORG> Chandigarh, who dis- missed both the appeals. Thereupon the appellant filed a writ petition in <ORG>. The learned single Judge who heard the petition dismissed the same holding that the goods supplied are parts of a refrigerating and air-condi- tioning appliances, that a complete cold storage plant was not supplied to <ORG> Ravi Cold Storage, Ahmedabad or <ORG> <ORG>, Ahmedabad and that they would fail clearly within the purview of Tariff sub-item (3) of Tariff Item 29-A. An appeal preferred against this judgment was dismissed by <ORG> in limine. Hence this appeal. Before this <ORG> also the appellant inter alia contended that 571 though in its sweep sub-item (3) may appear to cover all and every part of refrigerating and air-conditioning appliances and machinery of all sorts, the words "and parts thereof" in the heading controlled the meaning and restrict it in the context only to parts of a completed unit which as such completed unit would have come under sub-items (1) and (2) of item 29-A. Dismissing the appeal, this <ORG>, HELD: The legislative history and the notifications of the Government show that sub-item (3) of item 29-A is a comprehensive provision encompassing within it all sorts of air-conditioning and refrigerating appliances and machinery and the Government of India was issuing notifications of exemptions on the understanding that such parts are covered by sub-item (3). The language used in sub-item (3) is also wide and comprehensive in its application and could not be given a restricted meaning. Sub-items (1), (2) and (3) are independent of each other and mutually exclusive. The scope of sub-item (3) is neither restricted nor controlled by the provisions of sub-items (1) and (2). [576C-D] Whether the manufacturer supplies the refrigerating or airconditioning appliances as a complete unit or not is not relevant for the levy of duty on the parts specified in sub-item (3) of item 29-A. [576F-G] Complete plants which are covered by items (1) and (2) cannot be considered as parts of machinery and such complete plants would not be classifiable under sub-item (3) of Item 29-A. [580B- <CITATION> .,  ELT 600 All, overruled. <CITATION> .,  ELT 280 Bom.; <CITATION> ,  39 ELT 521 Bom.; <CITATION> .,  ELT 106 Ker.; <CITATION> ,  ELT 161-AII; <CITATION> .,  ELT 692- <CITATION> .,  ELT 333-Gujarat, referred to. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3395 of 1982.

From the Judgment and Order dated 4.6.1982 of <ORG> in L.P.A. No. 936 of 1982 <NAME> and <NAME> for the Appellant.

<NAME>, <NAME>, <NAME>, Ms. <NAME> and <NAME> for the Respondents. The Judgment of the Court was delivered by <NAME>, J. The appellants are a public limited company having a factory at Faridabad and engaged in manu- facturing air-conditioning and refrigeration equipment of various kinds and descriptions. They are holding a L-4 Licence to manufacture goods falling under Tariff Item No. 29A of the Central Excise Tariff. As per classification lists submitted from time to time under rule 173B of the Central Excise Rules, 1944, the company had declared in Form I that they are engaged in the manufacture of goods falling under sub-items (2) and (3) of Tariff Item No. 29A. Against gate pass Nos. 111, 112 and 113 dated January 21, 1970 and gate pass No. 116 dated January 22, 1970 the appellants had cleared from the factory cooling coils, condensors and compressors and supplied the same for putting up a cold storage plant to one M/s Ravi Cold Storage, Ahmedabad. These parts were manufactured by the appellants in their factory at Faridabad and were cleared by them against the above- mentioned gate passes after payment of a duty of Rs. 13.547.20 P. Against gate pass Nos. 95, 90, 97 and 98 dated January 21, 1969 the appellants had cleared from the factory various parts of refrigerating and air-conditioning appli- ances and machinery for an Ice-factory plant to one M/s <ORG>, Ahmeda- bad. These parts also were manufactured by the appellants in their factory at Faridabad and were cleared by them against gate passes referred to above after payment of a duty of Rs. 19,336.87 P.

On the ground that parts of the refrigerating and air- conditioning appliances which they have removed under the above said gate passes are not excisable goods falling under Tariff Item No. 29A(3), they filed two refund applications. The Assistant Collector of <ORG> rejected both these applications holding that the assessment was made correctly. The appellants preferred two appeals agianst these orders before the Collector of <ORG> and <ORG>, <NAME>, who by his common order dated December 20, 1971 dis- missed the appeals. Thereafter, the appellants filed writ petition in <ORG> and Haryana at <NAME>. This writ petition was dismissed by a learned Single Judge holding that the goods supplied are parts of a refrigerating and air-conditioning appliances, that a complete cold storage plant was not supplied to <ORG>, Ahmedabad or <ORG> <ORG> Ahmedabad, and that they will fall clearly within the purview of Tariff sub-item (3) of Tariff Item 29-A. An appeal preferred against this judgment was dismissed in limine by <ORG>. In order to understand the argument of the learned counsel for the appellants, it is necessary to set out Tariff Item 29-A in full at the relevant period, which reads as follows:

Item No. Tariff Description Rate of Duty 29A. REFRIGERATING AND AIR-CONDITIONING

APPLIANCES AND MACHINERY, ALL SORTS, AND PARTS THEREOF-- (1) Refrigerators and other refrigerat- Thirty ing appliances, which are ordinarily per cent sold or offered for sale as ready ad valorem assembled units, such as ice markers, bottle collers, display cabinets and water coolers.

(2) Air-conditioners and other air- Thirty conditioning appliances, which per cent are ordinarily sold or offered ad valorem for sale as ready assembled units, including package type of air-conditioners and evaporative type of coolers.

(3) Parts of refrigerating and Forty air-conditioning appliances per cent and machinery, all sorts. ad valorem

The argument of the learned counsel for the appellants was that sub-items (1) and (2) deal with refrigerators and other refrigerating appliances and air-conditioners and other air-conditioning appliances respectively which are ordinarily sold or offered for sale as a ready assembled unit. Therefore, in order to bring it within sub- items (1) and (2) such refrigerating and air-conditioning appliances should be complete assembled units and they must also be ordinarily sold or offered for sale as such ready assembled units. The illustrative examples referred to in the two sub-items make this clear according to them. The cold storage plant and ice-factory plant supplied to the factories concerned in this case as such are not such com- plete assembled units which are ordinarily sold or offered for sale within the meaning of sub-items (1) and (2). From this premise they sought to interpret sub-item (3) as mean- ing that the goods that are covered by that sub-item are parts of those refrigerating or air-conditioning appliances which in its assembled form would have come as a complete unit under Tariff sub-items (1) and (2) of Item 29A and are manufactured for sale. In other words, they want to restrict the content of sub-item (3) with reference to the items that may fall under sub-items (1) and (2). The further submission was that though in its sweep sub-item (3) may appear to cover all and every part of refrigerating and air-condition- ing appliances and machinery of all sorts, the words "and parts therefore" in the heading controlled the meaning and restrict it in the context only to parts of a completed unit which as such completed unit would have come under sub-items (1) and (2) of Item 29A. In this connection, learned counsel has referred to certain decisions of <ORG> which we will refer to later.

By Finance Act of 1961 Item 29A and 40 were introduced in the First Schedule to the Central Excises and Salt Act , 1944 and those two entries read as follows:

"29A. AIR CONDITIONING MACHI- Twenty NERY, ALL SORTS. per cent ad valorem.

40. REFRIGERATORS AND PARTS Twenty THEREOF. SUCH AS ARE per cent SPECIALLY DESIGNED FOR USE ad valorem." WITH REFRIGERATORS.

The Notes on Clauses relating to the relevant clause in the Finance Bill 10 of 1961 stated that Item 29A proposes to levy an excise duty on air-conditioning machinery and Item 40 proposes to levy an excise duty on refrigerators and "parts thereof."

By the Finance Act 2 of 1962 a combined tariff entry in the form prevailing in 1969 and 1970 was introduced and the Notes on Clauses relating to this amendment stated that the proposal is "to combine into one item the present tariff items 29A and 40 relating to 'Air-conditioning Machinery' and 'Refrig- erators' respectively as well as to make it more comprehen- sive." Under the Government of India, <ORG>, <ORG>, Notification No. 80/62-Central Ex- cises, dated 24th April, 1962 as subsequently amended by Notifications dated 29th December, 1962, 23rd March, 1968 and 14th June, 1969 all parts of refrigerating and air- conditioning appliances and machinery other than the "parts" mentioned below were exempt from the payment of excise duty leviable thereon:

"(i) Cooling coils or evaporator

(ii) Compressor

(iii) Condenser

(iv) Thermostat

(v) Cooling unit, and in the case of absorption types of refrigerators in which there is no compressor, heater including Burners and Baffles in a Kerosene Operated absorp- tion type refrigerator.

(vi) Starting Relay, controls (including expansion value and solenoid valves) and pressure switches

(vii) Overload Protection/Thermal Relay

(viii) <ORG>."

There are a number of other notifications also exempting parts of refrigerating and air-conditioning appliances and machinery, intended to be used for various purposes speci- fied in the notifications, such as, use in refrigerating and air-conditioning appliances or machinery which are installed or to be installed in any of the following establishments: "1. Computer rooms. 2. Research and test laboratories 3. Animal houses 4. Telephone exchanges 5. Broadcasting studios 6. Trawlers 7. Dams 8. Mines and tunnels 9. Thermal and hydel power stations 10.

Technical buildings of <ORG> 11. Any Hospital run by <ORG>, a State <ORG>., <ORG> or <ORG> and 12. Any factory."

Vide the Notification No. 93/76-CE dated 16.3.1976 issued under subitem (3) of Item 29A of the First Schedule. there are various other notifications also issued under the same sub-item which covers installation of air-condition and refrigerating equipments of almost all categories. The legislative history and the notifications of the Government show that sub-item (3) of Item 20A is a compre- hensive provision encompassing within it parts of all sons of air-conditioning and refrigerating appliances and machin- ery and the Government of India was issuing notifications of exemptions on the understanding that such parts are covered by sub-item (3). The language used in sub-item (3) is also wide and comprehensive in its application and could not be given a restricted meaning. Sub-items (1), (2) and (3) are independent of each other and mutually exclusive. The scope of sub-item (3) is neither restricted nor controlled by the provisions of sub-items (1) and (2).

It is well-settled that the headings prefixed to sec- tions or entries cannot control the plain words of the provision; they cannot also be referred to for the purpose of construing the provision when the words used in the provision are clear and unambiguous; nor can they be used for cutting down the plain meaning of the words in the provision. Only, in the case of ambiguity or doubt the heading or sub-heading may be referred to as an aid in construing the provision but even in such a case it could not be used for cutting down the wide application of the clear words used in the provision. Sub-item (3) so construed is wide in its application and all parts of refrigerating and air-conditioning appliances and machines whether they are covered or not covered under sub-items (1) and (2) would be clearly covered under that sub-item. Therefore, whether the manufacturer supplied the refrigerating or air-condi- tioning appliances as a complete unit or not is not relevant for the levy of duty on the parts specified in sub-item (3) of Item 29A.

Strong reliance was placed by the learned counsel for appellants on the decision of <ORG> in <ORG> v. Superin- tendent of <ORG>., [1980] ELT 600 All. In that case the writ petitioners were the owners Of a old storage plant. The writ petitioners themselves installed and assembled the cold storage plant. Part of the plant consisted of erecting locally what are called cooling coils and condensers. Generally cooling coils and condensers contain a very long length of pipes made in a particular shape. The petitioners in that case, however, bought pipes of various lengths, erected them one after the other and joined one with the other with a 'U' shape bend. These bends were welded. The result was that the various pipes consti- tuted an unit indesigning the plant. This part of the plant was necessary in order to pass the cooling gas through it and thereby cool the chambers of the storage. The petition- ers bought the pipes and the bends from the market and got them placed at the factory site and got them welded. The department, in the view that the conglomeration of pipes manufactured by the petitioner, constituted manufacture of cooling coils which are parts of refrigerating and air- conditioning appliances and machinery covered by Item 29A(3) called upon the petitioners to pay excise duty on its value. All the authorities found that the erection and installation by the petitioners, by laying pipes and joining them by welded bends, amounted to the manufacture of cooling coils and condensers as known to refrigeration technology. <ORG> accepted these findings. However, it held that parts of refrigerating and air-conditioning appliances which answer the description given in sub-items (1) and (2) alone are liable to duty under Entry 29A(3) and not all parts used in refrigeration technology. The learned judges reached this conclusion on the grounds that:

"The heading of Entry 29A makes it clear that only parts of such refrigerating and air-conditioning appliances and machinery as are covered by sub-entries (1) and (2) alone are liable to duty. In other words, the parts in question should be such as are ordinarily sold or offered for sale as ready. assembled units. On any other interpretation the words 'thereof' occurring in the heading 29A will be redun- dant. An interpretation which makes any part of a statute redundant has to be discarded."

and that "When an entry in the schedule specifically refers to and re- stricts the applicability of duty to goods which are assembled units and which are generally offered for sale, the concept of sale is necessarily brought in. As already seen, sub-entry (3) takes it colour from sub-entries (1) and (2) because of the specific directive of the heading by using the words 'parts thereof'."

We are afraid that both these reasons are fallacious and not acceptable. As already stated neither can sub-entry (3) be said to take its colour from sub-entries (1) and (2) nor could those sub-entries or heading curtail the plain meaning of the words used in sub-entry (3). We, therefore, hold that the <CITATION> . 's, case (supra), was wrongly decided and accordingly we overrule the same. The learned Judges have also relied on a Tariff Advice dated September 30, 1969 given under the Customs Act for the purpose of levying countervailing duty. We shall deal with this ques- tion when we consider that Tariff Advice in a latter part of this judgment.

The decisions of <ORG> in <CITATION> .,  ELT 280 Bom. and <CITATION> ,  39 ELT 521 Bom., related to the scope of Tariff item 29A(1) and not Item 29A(3) with which we are concerned. In the view we have taken that sub-entries (1) and (2) of Entry 29A cannot control or restrict the meaning of such entry (3) it is not necessary for us to go into the scope of Entry 29A (1) and (2). These decisions, therefore, are no relevance. The decision of <ORG> in <CITATION> .,  ELT 106 Ker., also does not touch upon the question with which we are concerned. The decision of <ORG> in <CITATION> ,  ELT 161 All. and <CITATION> .,  ELT 692 All., simply followed the decision in <CITATION> ., (supra) and, there- fore, they do not advance the case any further. On the other hand, we have a decision of <ORG> in <CITATION> .,  ELT 333 Guj., wherein <NAME>, Chief Justice, as he then was, referred to <ORG> judgment and dissenting from it held:

"On taking a close look at Item 29A it will be seen that what is printed at the top of the entry as "caption" indi- cates the nature of the goods covered by the entry. It does not more than indicate what is the nature of the goods which are specified in the said entry. Cls. (1), (2) and (3) are independent of each other. Clause (3) in terms refers to goods which fall within the description of the said entry, namely, "Parts of refrigerating and air-conditioning appli- ances and machinery, all sorts". It is not disputed that cooling coils and condensers would fall within the category of "appliances and machinery". Counsel however argues that we must first read the scope of cl. (1) and cl. (2) and draw an inference therefrom that the goods covered by entry, will attract excise duty only provided they are manufactured for sale. We see no valid reason for reading the entry in that manner. Each of the three sub-clauses referes to different entries and specifies different rates of duty for the goods falling within the respective entries."

and that "As we indicated earlier, in the first place the purpose of the caption is to provide a clue to the nature of the goods which are covered by the entry. But even otherwise if the caption is read in the manner in which it has been worded it does not justify or warrant an inference that it related to goods which are manufactured for the purpose of sale. Entry 29A adverts to goods which would fall within one or the other of the three classifications specified therein. The description of each category of goods if clearly mentioned in col. (2). So far as CI. (3) is concerned the tariff description is "parts of refrigerating and air-conditioning appliances and machinery". We cannot read the words 'manufactured for sale' in entry No. 3 by drawing upon the theory of "Taking colour" which has no application in a case like the present one. If we inject these words we would be re-writing this section and we would be legislating which we cannot do."

The learned counsel for the appellants then relied on the Trade Advice dated 30th September, 1969 given by <ORG>, New Delhi, in respect of classification of refrigerating machinery and ice making plant which are not sold or offered for sale as ready assem- bled unit for purposes of countervailing duty under the Customs Act . After referring to sub-items (1) and (2) of Item 29A as covering complete plant and equipment which a re-ordinarily sold or offered for sale as ready assembled units, had stated as follows, with reference to sub-item (3):

"Sub-item (3) of item 29A of the Central Excise Tariff refers to parts or' machinery and appliances and complete plants which cannot be considered as "parts of machinery" would not be classifiable under sub-item (3) to item 29A C.E.T. also."

As may be seen from this paragraph it consists of two parts, the first portion referring to parts of machinery and appli- ances and the second portion referring to complete plants which cannot be considered as parts of machinery. The whole argument arose because of the composite sentence used in this paragraph. It only means complete plants which are covered by Items (1) and (2) cannot be considered as parts on machinery and such complete plants would not be classi- fiable under sub-item (3) of Item 29A. The reliance placed by the learned counsel on this notification does not in any way advance the case of the appellants.

In the foregoing circumstances, the appeal fails and it is dismissed with costs.

<ORG> dismissed.


<NAME>, <NAME>

1. This is a judgment-debtor's appeal The plaintiff filed a suit for specific performance of a contract and the suit was decreed. Learned counsel has stated that the plaintiff had also asked for delivery of possession of the property but no mention was made in the decree about delivery of possession. The terms of the decree were as follows :

"The plaintiff's suit for specific performance of the contract of sale dated 12-1-1948 is decreed against the defendants and the defendants 1 to 5 are ordered to execute a sale deed of the property in dispute in favour of the plaintiff on payment of......"

It is urged by learned counsel that the plaintiff having claimed possession and possession not having been specifically granted in the decree, it must be deemed that the relief for possession was refused and the plaintiff cannot, therefore, claim delivery of possession.

2. We do not think there is any force in this contention. Section 55(1)(f) of the Transfer of Property Act (iv of 1882) provides that "The seller is bound (f) to give, on being so required, the buyer or such person as he directs such possession of the property as its nature admits;"

The decree for specific performance, which provides that the property shall be sold to the plaintiff by the defendants and the sale deed shall be executed within a certain time, failing which the court will have the sale deed executed by a person nominated by it, implies that delivery of possession shall be given in accordance with the provisions of Section 55(1)(f) , T. P. Act. Delivery of possession is a necessary ingredient and part of transfer of ownership.

3. Learned counsel has relied on the provisions of Order 21, Rule 32(5), Civil P. C. which are as follows :

"Where a decree for the specific performance of a contract or for an injunction has not been obeyed, the <ORG> may, in lieu of or in addition to all or any of the processes aforesaid, direct that the act required to be done may be done so far as practicable by the decree-holder or some other person appointed by the <ORG>, at the cost of the judgment-debtor and upon the act being done the expenses incurred may be ascertained in such manner as the <ORG> may direct and may be recovered as if they were included in the decree."

We fail to see how these provisions help the judgment-debtor Appellant. The sub-rule quoted above provides what the executing court can do when there is a decree for specific performance and where it is necessary for something to be done by the decree-holder at the cost of the judgment-debtor.

4. <CITATION> ', AIR 1950 All 415 (A), a Bench of this Court held that :

"Where in a suit for specific performance of a contract of sale no relief for possession is claimed and consequently the decree passed in the suit contains no relief for delivery of possession, the Court executing the decree is competent to deliver possession, an order directing delivery of possession being merely incidental to the execution of the deed of sale."

Learned counsel has urged the case is distinguishable as in that case relief for possession was not claimed, but in the case before us relief for possession was claimed, but no mention of it was made in the decree. We do not think that it is necessary in a suit for specific performance either to separately claim possession or it is necessary for the <ORG> to pass a decree for possession. A decree for specific performance of contract includes everything incidental to be done by one party or another to complete the sale transaction, the rights and obligations of the parties in such a matter being indicated by Section 55 , T. P. Act.

5. There is, therefore, no force in this appeal and it is dismissed under Order 41, Rule 11, Civil P. C.