PETITIONER: <NAME> & <NAME>. Vs. RESPONDENT: <NAME> NAG DATE OF JUDGMENT: 01/11/1966 BENC<ORG>: <NAME>, J.M. BENC<ORG>: <NAME>, J.M. WANC<ORG>OO, K.N. MITTER, G.K. CITATION: 1967 AIR 1440 1967 SCR (2) 18 CITATOR INFO : R 1970 SC1717 (17) R 1973 SC 569 (15) ACT: Code of Civil Procedure (Act 5 of 1908), ss. 151, 152-<ORG> mistakenly passing preliminary decree for sale in suit for foreclosure-Subsequently correcting mistake and passing final decree for foreclosure-Power to correct such error. Transfer of Property Act , s. 52- Purchase of mortgaged property pendente life-Applicability of doctrine of lis pendens. <ORG>EADNOTE: A piece of land with some constructions on it situated in district <ORG>owrah was mortgaged by conditional sale. The mortgage deed provided that in case of default in payment of the mortgage amount by the due date the sale would become absolute. Subsequently the mortgagor sold his interest to <ORG>. As the mortgage amount was not paid by the due date the mortgagee filed a suit for foreclosure which was decreed. The trial court passed a preliminary decree ordering that in case the mortgage amount was not paid within six months the plaintiff would be at liberty to apply for a final decree for sale. <ORG> filed an appeal before the <ORG>igh <ORG> which was dismissed. The final decree framed by the trial <ORG> in pursuance of the <ORG>igh <ORG>'s orders was for foreclosure. While the above appeal was pending the respondent in execution of a money decree against <ORG> purchased the aforesaid mortgaged properties and was given possession thereof. <ORG>owever after the final decree passed by the <ORG> in the mortgage suit the mortgagee was given possession of the properties. The respondent thereupon filed an application under O. 21 r. 100 for restoration of possession to him. This application was rejected by the trial court. The respondent then filed an appeal against the final decree in the <ORG>igh <ORG>. <ORG>is appeal was entertained and the <ORG>igh <ORG> set aside the trial court's decree on the ground that there was lack of conformity between the preliminary decree which was for sale and the final decree which was for foreclosure. The matter was remanded to the trial court and leave was given to the respondent to participate in the matter. The appellants who in the meanwhile had purchased the mortgagee's interest, appealed.. with certificate under Art. 133(a) and (b) to this <ORG>. <ORG>ELD : (i) The <ORG>igh <ORG> had held that the respondent had a locus standi in the matter and had directed that he was to be allowed in the remand proceedings to plead that the final decree should be one for sale thus reopening the question of redemption of the mortgage which' had been extinguished by the final decree. The <ORG>igh <ORG>'s order as regards these' matters was certainly a final order and therefore the pro- priety of the certificate under Art. 133 granted to the appellants could not be questioned. [24 A-C] (ii)There is 'an inherent power in the -court which passes the judgment to correct a clerical mistake or an error arising from an accidental slip or omission and to vary its judgment so as to give effect to its meaning and intention. On the facts of the present case there could be little doubt that the court had no occasion to pass a preliminary decree for sale and that it was through an accidental slip or inadvertence that in 19 the penultimate part of its judgment the court used the phraseology proper in a mortgage decree for sale. Once this error had crept in the judgment it was repeated in the preliminary decree. This being the position the trial court had the power under s. 151 and s. 152 of the Code of Civil procedure to correct its own error which had crept in the judgment and the preliminary decree and to pass a proper final decree for foreclosure as intended by it. [24 E, 25 E, <ORG>] (iii)On the facts of the case it could not be said that the decree represented a wrong decision of the <ORG>. [26 D- E] (iv)The principle of lis pendens applies even to involuntary alienations like court sales. The respondent having purchased the mortgaged property while the appeal against the preliminary decree in respect of the property was pending in the <ORG>igh <ORG>, the doctrine of lis pendens must apply to his purchase and he was therefore bound by the result of the suit. [28 B-D] Case law considered. JUDGMENT:

CIVIL APPELLATE JURISDICTION. Civil Appeal No. 707 of 1964. Appeal from the judgment and decree dated November 12, 1961, of <ORG> in Appeal from Original decree No. 285 of 1956.

<NAME>, Addl. Solicitor-General, <NAME> and <NAME>, for the appellants.

<NAME>, <NAME> and <NAME>, for the res- pondent.

The Judgment of the Court was delivered by <NAME>, <NAME> and <NAME> owned 2 bighas and 18 cottahs of land with a construction standing thereon, situated in Salkiah, District Howrah. By a deed of mortgage by conditional sale dated June 2, 1933 the said owners mortgaged the said property to secure repayment of Rs. 2,750 advanced to them by <NAME>, then a minor through his mother, <NAME> as his certificated guardian. The said mortgage, inter alia, provided that if the mortgage amount was not repaid by the due date i.e., April 14, 1935 the mortgage would be considered as a deed of absolute sale and the mortgagee would be entitled to take possession of the property. On June 18, 1934 the mortgagors assigned their right, title and interest in the said property to one <NAME>. As the said mortgagors or the said <NAME> failed to pay the said mortgage amount on the due date, the mortgagee filed a suit on July 17, 1945 for enforcement of his rights impleading the two mortgagors and the said <NAME> as defendants. In that plaint the mortgagee prayed for a decree for Rs. 5,426/10/6, being the amount then due under the said mortgage and for fixing the time for. payment of the said amount. The plaint also contained a prayer that on failure to pay the decreetal amount within the time fixed by the court the right of the defendants to redeem the mortgage may be annulled and a decree may be passed giving possession of the mortgaged property." The mortgagors filed a written statement claiming that they should be permitted to pay the mortgage amount by instalments as provided by the Bengal Money Lenders Act. The said <NAME> also filed a written statement alleging that he was a bona fide purchaser without notice of the said mortgage. The two mortgagors did not contest the suit and it was only <NAME> who contested it contending also that as the loan under the said mortgage was advanced by the guardian of the said <NAME>, then a minor, without obtaining sanction of the District Judge, the said mortgage was null and void.

<ORG> rejected these contentions and passed a pre- liminary decree on December 23, 1946. The said decree, inter alia, provided that the mortgage amount due was Rs. 5,426/10/6 and that if the said amount together with costs of the suit was not paid by the defendants within six months from the date of the decree the plaintiff would be at liberty to apply for a final decree. Though the suit was a foreclosure suit the preliminary decree passed by <ORG> was one under O. 34 r. 4(1) of the Code of Civil Procedure inasmuch as it provided that in default of payment as aforesaid the plaintiff would be at liberty to apply to the court for a final decree for sale and that if the sale proceeds on such sale were not sufficient for payment of the decreetal amount the plaintiff would be at liberty to apply for a personal decree against the defendants for the balance. Against the said preliminary decree the said <NAME> filed an appeal in <ORG> at Calcutta raising two contentions, (1) that the said mortgage was void on account of sanction not having been obtained by the guardian of the mortgagee before advancing the said loan and (2) that he should be permitted to pay the decreetal amount by instalments. <ORG> negatived these contentions and by its judgment and decree dated March 22, 1951 dismissed the said appeal and the suit was sent back to <ORG> for passing a final decree.

While the said appeal was pending the respondent obtained a money decree against the said <ORG> and commenced execution proceedings against him. An attachment was levied on the said mortgaged property and thereafter on June 23, 1950 the right, title and interest of the said <ORG> was put up for sale. The respondent was the auction purchaser and the court confirmed the said sale by an order dated February l5,1951. The said auction sale was in respectof 1 bigha and 2 cottahs out of the said mortgagee property.According to the respondent he was given possession of the said property on May 3, 1951.

On March 1, 1954, the said mortgagee, <NAME>, applied for a final decree in the said suit. Pending this application, he assigned his right in the said decree in favour of the appellants on May 31, 1954. On July 1, 1954 the appellants applied to <ORG> for being substituted in place of the said Panchu Shrimani. <ORG> directed notices to be issued on the defendants, that is, the said two mortgagors and the said <NAME> and they having raised no objection the court by an order dated January 5, 1955 ordered substitution and then passed a final decree. The said decree, after reciting that the said decretal amount was not paid within the time appointed by the defendants or any other person entitled to redeem the said mortgage, provided as follows:-

"And it is hereby ordered and declared that the defendant and all persons claiming through or under him are absolutely debarred and foreclosed of and from all rights of

-redemption of and in the property in the aforesaid preliminary decree mentioned .... and that the defendant shall deliver to the plaintiff quiet and peaceful possession of the said mortgaged property."

On April 19, 1955 the appellants applied for and obtained possession of the said mortgaged property. According to the respondent, however he learnt about the possession of the said mortgaged property having been delivered to the appellants for the first time on May 25, 1955 and thereupon filed an application under O. 21 r. 100 of the Code for restoration of possession to him. On September 27, 1955 <ORG> rejected that application. The respondent then filed on January 3, 1956 a Revision Application against the said dismissal. On August 23, 1955 the respondent filed a second application under section 151 of the Code for setting aside the said final decree. On the same day he also filed an appeal in <ORG> being Appeal No. 285 of 1956 against the said final decree but without impleading the said mortgagors or the said <NAME>, who still was partially interested in the equity of redemption in the said property. In the meantime, <ORG> dismissed the respondent's application under section 151 by its order dated February 14, 1956. <ORG> also by its order dated May 12, 1961 discharged Civil Rule No. 2 of 1956 issued in the revision application filed by the respondent against the dismissal of his application under O. 21 r. 100. Appeal No. 285 of 1956 came on for hearing on May 12, 1961 before <ORG> of <ORG>. <ORG> set aside the final decree observing :

"It is common case that the preliminary decree was for sale. The prayer by the respondents was for a final decree in terms of the preliminary decree. This was allowed, but the final decree as drawn up turned out to be one for foreclosure. It is this disconformity between the preliminary decree and the final decree which is being challenged by the appellant." <ORG> ordered "We should in the result set aside the final mortgage decree and allow the appeal by remitting the matter back to the Court below to be dealt with in accordance with law. The appellant is given liberty to participate in the matter."

Against the said judgment and decree the appellants applied for and obtained a certificate under Art. 133(1)(a) and (b). It is manifest that <ORG> judgment meant that the respondent had sufficient interest to maintain the said appeal and participate in the proceedings before <ORG> on the said remand for considering the question whether the said preliminary decree should be altered or not and if not whether the respondent had still the right to redeem the said mortgage, though the time for payment fixed under the said preliminary decree had expired, that is, six months from December 23, 1946, long before the respondent became a purchaser of part of the said equity of redemption on February 15, 1951. There is no dispute that the valuation test for a certificate is satisfied in the present case. The judgment and decree passed by <ORG> is also not one of affirmance as <ORG> set aside the said final decree. There can be no dispute also that the question whether the appellant who was the auction-purchaser pendente lite had the locus standi to maintain the appeal was finally decided and he was given liberty to participate in the proceedings for correcting the preliminary decree and was enabled thereby to contend that he was still entitled to redeem the said mortgage and retain possession of the mortgaged property. <ORG> was bound to allow him to participate in those proceedings as <ORG> judgment specifically directed it to deal with the case in accordance with the directions contained in the said judgment. The judgment and decree of <ORG> thus, besides setting aside the said final decree meant that the respondent had still sufficient interest entitling him to challenge the appellants' claim to have a final foreclosure decree and to. maintain that the question of redemption was still open and he had the right to redeem the mortgaged property.

Counsel for the respondent however contended that the certi- ficate granted by <ORG> was not competent and was liable to be vacated as the judgment passed by <ORG> was not a judgment, decree or final order inasmuch as what <ORG> had done was only to remand the case to <ORG> and <ORG> had yet to decide the question whether a final decree for foreclosure should be passed or whether the final decree should be one for sale enabling the respondent to redeem the said mortgage. In support of his contention he relied on <CITATION> (1) where this Court held that the certificate granted therein was incompetent as it could not be granted in respect of an interlocutory finding. The order appealed against in that case was a decision as to the validity of the Bombay Prevention of Excommunication Act, 1949 (Bombay XLII of 1949). That being one of the several issues the decision did not dispose of the suit as the rest of the issues still remained to be tried and it was for this reason that it was held that the said order was not a judgment, decree or final order. <CITATION> (2) was again a case of remand directing <ORG> to frame fresh issues and give opportunity to the parties to produce evidence. In fact it was an order for a Trial de nova on fresh pleadings and on all issues that might arise on such pleadings. Evidently any decision given by <ORG> in the course of its order would not be binding on <ORG> as the case had to be tried afresh by it. In these circumstances it was held that the order of remand was not 'a judgment, decree or final order as it did not amount to a final decision relating to the rights of the parties in dispute.

In our opinion, these decisions cannot help Mr. <NAME> as the position here is not the same as in those two decisions. <ORG> has given its judgment and in pursuance thereof passed a decree setting aside the said final decree. If <ORG> had held that the respondent in the circumstances of the case had no right to maintain his appeal, the final decree would have become a concluded decree and his right of redemption, if any, would have been totally extinguished. It is true that <ORG> remitted the case to <ORG> but it was obviously not an order of remand simpliciter. The decision of <ORG> was not on a preliminary issue leaving undecided other issues to be tried by <ORG>. It will be observed that the respondent was not a party to the suit-he could not be because when the preliminary decree was passed he was not on the scene. Though he became an auction-purchaser while the appeal against the preliminary decree was pending, he did not apply for being brought on record. The appellants or their predecessor-in-title would not be aware of his purchase and therefore could not implead him in the suit or in the appeal'. The respondent filed his appeal against the said final decree and two questions arise in that appeal : (1) whether being a purchaser pendente lite he had locus standi to file an appeal and challenge the final decree and (2) whether <ORG> had jurisdiction to pass the final decree which was not in conformity with the preliminary decree. The judgment of <ORG> is unfortunately laconic and one wishes that the learned Judges, (1) [1958] S.C.R. 1007. (2) [1961] 3 S.C.R. 754.

had taken us a little more into confidence by giving some reasons at least. Nonetheless, it is clear that they decided both the questions by holding that the respondent had still sufficient interest in the matter and therefore had locus standi and by setting aside the final decree and directing <ORG> to decide the question as to whether it could correct the said preliminary decree in accordance with the directions given by them they held that the respondent was entitled to participate in those proceedings and plead that the final decree should be one for sale and consequently he was entitled to redeem the said mortgage. There can be no question that the two questions raised in the appeal before <ORG> were disposed of finally inasmuch as the said final decree was set aside as not being valid and binding on the respondent and the question of redemption by him which was extinguished by that final decree was reopened entitling the respondent to contend that he had the right to redeem and to hold the said property. In these circumstances the preliminary objection raised by Mr. <NAME> cannot be sustained and the certificate must be held to be competent.

On merits, two questions were raised : (1) whether <ORG> was competent to pass a final decree for foreclosure though .the preliminary decree was for sale and (2) whether the respondent had the right to contend that he was entitled to redeem the said mortgage in view of the fact that he was the execution purchaser of part of the equity of redemption pendente lite.

Now, it is well-settled that there is an inherent power in the court which passed the judgment to correct a clerical mistake or ,an error arising from an accidental slip or omission and to vary its judgment so as to give effect to its meaning and intention. "Every court," said <NAME> in <NAME> v. Swira(1) "has inherent power over its own records so long as those records are within its power and that it can set right any mistake in them. An order even when passed and entered may be amended by the court so as to carry out its intention and express the meaning of the court when the order was made." <CITATION> (2) the decree as drawn up in <ORG> had used the words " mesne profits" instead of "net profits". Infact the use of the words " mesne profits" came to be made probably because while narrating the facts, those words were inadvertently used in the judgment. This court held that the use of the words "mesne profits" in the context was obviously the result of inadvertence in view of the fact that the decree of <ORG> had specifically used the words " net profits" and therefore the decretal order drawn up in <ORG> through mistake could be corrected under sections 151 and 152 of the Code even after <ORG> had granted certificate and appeals were admitted in this court before the date of the (1) 30 Ch. 239. (2) A.I.R.

1962 S.C. 633.

correction. It is true that under O. 20 r. 3 of the Code once a judgment is signed by the Judge it cannot be altered or added to but the rule expressly provides that a correction can be made under section 152 . The Rule does not also affect the court's inherent power under section 151 . Under section 152 , clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the court either on its own motion or on an application by any of the parties. It is thus manifest that errors arising from an accidental slip can be corrected subsequently not only in a decree drawn up by a ministerial officer of the court but even in a judgment pronounced and signed by the court.

As already pointed out, the mortgage in question was one by conditional sale empowering the mortgagee to take possession of the mortgage security if the monies due thereunder were not paid by the due date. The suit filed by the mortgagee was also for a foreclosure decree. The tenor of the judgment of <ORG> shows that the court meant to pass such a foreclosure decree especially as the plaint contained no prayer for a decree for sale or for a personal decree against the mortgagors or the said <NAME> if the sale proceeds were found insufficient. The written statements of the defendants did not raise any contention against the mortgagees' right for a foreclosure decree, their defence being only that they were entitled to pay the mortgage amount by instalments. There can therefore be little doubt that the court had no occasion to pass a preliminary decree for sale and that it was through an accidental slip or inadvertence that in the penultimate part of its judgment the court used the phraseology proper in a mortgage decree for sale. Once this error had crept in the judgment it was repeated in the preliminary decree and this error was not even noticed by <ORG> when it dismissed <NAME>'s appeal and confirmed that decree. The error was later on noticed by the appellants as is seen from the order passed by <ORG> dismissing the respondent's application under section 151 for setting aside the final decree. That order states that the Subordinate Judge who tried the suit through oversight passed a preliminary decree for sale overlooking the fact that it was a suit for foreclosure and possession, that it was also apparent that this mistake of <ORG> went unnoticed in <ORG> which confirmed the decree of <ORG> and "therefore, this court, when it passed the final decree being apprised of the apparent mistake in the form of the preliminary decree, corrected the initial mistake and did justice by passing a final decree for foreclosure and for possession which was -the only scope of this suit."

This being the position <ORG> had the power under section 151 and section 152 to correct its own error which had crept in the Sup. CI/66-3 judgment and the preliminary decree and pass a proper final decree for foreclosure as intended by it.

Mr., <NAME>, however,, raised two contentions; (1) that a judgment or decree cannot be varied when it correctly represents what the court decided though it may be wrongly nor can the operative or substantive part of the judgment be varied and a different one substituted and (2) that a judgment or decree cannot be varied where there has been intervention of rights of third parties based on the existence of the decree and ignorance of the mistake therein. In such a case the exercise of power to correct the mistake would be inequitable or inexpedient. No one can quarrel with these propositions. But considering the nature of the mortgage, the cause of action and the prayers in the suit, the absence of any contest as regards that cause of action and the prayers, and the tenor of the judgment until it came to its penultimate part, there can be no doubt that the intention of <ORG> was to pass a preliminary decree for foreclosure as prayed for and that was what the court had decided. It was therefore through an accidental slip that in that final part of the judgment the Subordinate Judge used the phraseology used in a preliminary decree for sale. Therefore, there is no question of a wrong judgment having been passed by the Judge or the preliminary decree correctly representing that which was wrongly decided by the Judge. If that had been so, neither the judgment nor the decree could be corrected and the obvious remedy would be by way of an appeal. In <NAME> v. <NAME>) though only one of the defendants appeared and contested the suit the order made was that "the suit be decreed with costs." This was allowed to be altered on the ground that it was contrary to the intention of the court, that such an intention had to be gathered from the judgment as a whole and that the decree following the concluding portion of the judgment awarding costs against all the defendants was not in accord with the true intention of the court.

The second contention is based on the observations of Lord <NAME> in <NAME> v. Harris(2) where he stated--

"that there may possibly be cases in which an application to correct an error of this description would be too late. The rights of third parties may have intervened, based upon the existence of the decree and ignorance of any circumstances which would tend to shew that it was erroneous, so as to disentitle the parties to the suit or those interested in it to come at so late a period and ask for the correction to be made."

(1) 18 C. W. N. 772.

(2) [1892] A.C. 547 at 558.

It is true that the respondent purchased part of the equity of redemption from his judgment-debtor, <NAME>, after the preliminary decree Was passed. It is also true that that decree was not in the form of a foreclosure decree but of a mortgage decree for sale. But according to Lord <NAME>'s observations, the intervening interest of third parties must be based on the existence of the decree and ignorance of any circumstances which would tend to show that it was erroneous. No such thing has happened and indeed it was never the case of the respondent that he purchased the interest of the said <NAME> because he was aware that a preliminary decree for sale has been passed and that under that decree he would be entitled to redeem the mortgaged property or that he was ignorant of the mistake in that decree. That being the position it is difficult to see how the case of <NAME> v. <NAME>() can apply to the present case. In this view, <ORG> had the power to correct the accidental slip which had crept in its judgment and correct that error by passing the final decree in accordance with its true intention. The final decree was passed after notice to the mortgagors and the said <NAME> and after hearing them. The respondent was not made a party to that application as the appellants were never made aware of his purchase. The respondent also had not cared to be brought on record in substitution of or in addition to the said <NAME> from whom he derived his interest in the equity of redemption. In our view, both the contentions raised by the respondent in this behalf must be rejected. What then is the position of the respondent once it is held that the final decree for foreclosure was validly passed by <ORG> ? Could he challenge that decree in an appeal against it in <ORG> on the basis that he was entitled to redeem the said mortgage? Section 91 of the Transfer of Property Act provides that besides the mortgagor any person other than the mortgagee who has any interest in or charge upon the property mortgaged or in or upon the right to redeem the same may redeem or institute a suit for redemption of such mortgaged property. An execution purchaser therefore of the whole or part of the equity of redemption has the right to redeem the mortgaged property. Such a right is based on the principle that he steps in the shoes of his predecessor-in-title and has therefore the same rights which his predecessor-in-title had before the purchase. Under section 59A of the Act also all persons who derive title from the mortgagor are included in the term "mortgagor" and therefore entitled to redeem. But under section 52 which incorporates the doctrine of lis pendens, during the pendency of a suit in which any right to an immovable property is directly and specifically in question such a property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any (1)  A.C. 547 at 558.

other party -thereto under any decree or order which may be made therein except under the authority of the court and on such terms as it may impose. Under the Explanation to that section the pendency of such a suit commences from the date of its institution and continues -until it is disposed of by a final decree or order and complete satisfaction or discharge of such a decree or order has been obtained. The purchaser pendente lite under this doctrine is bound by the result of the litigation on the principle that since the result must bind the party to it so must it bind the person deriving his right, title and interest from or through him. This principle is well illustrated in <NAME> v. <NAME>) where the facts were almost similar to those in the instant case. it is true that section 52 strictly speaking does not apply to involuntary alienations such as court sales but it is well-established that the principle of lis pendens applies to such alienations. (See <NAME> v. <NAME>) and <NAME> v. <NAME> (3). It follows that the respondent having purchased from the said <NAME> while the appeal by the said <NAME> against the said preliminary decree was pending in, <ORG>, the doctrine of lis pendens must apply to his purchase and as aforesaid he was bound by the result of that suit. In the view we have taken that the final foreclosure decree was competently passed by <ORG>, his right to equity of redemption was extinguished by that decree and he had therefore no longer any right to redeem the said mortgage. His appeal against the said final decree was misconceived and <ORG> was in error in allowing it and in passing the said order of remand directing <ORG> to reopen the question of redemption and to allow the respondent to participate in proceedings to amend the said preliminary decree.

In the result, we allow the appeal, set aside the judgment and decree passed by <ORG> and restore the judgment and decree passed by <ORG>. The respondent will pay the appellants' costs all throughout.

G. C. Appeal allowed. (1)15 I.A. 97. (3) 24 I.A. 170. (2) 12 I.A. 171.


ORDER (1) These are two connected revisions preferred against the orders made by the learned Ex-Officio First Class Magistrate, <NAME>, in M. C. Nos. 36 of 1957 and 2 of 1958 and the opinion of the learned Subordinate Judge of Tirunelveli in C. M. P. 2 of 1958.

(2) The facts are short: There has been a land dispute regarding possession between <NAME> and <NAME>. The Ex-officio First Class Magistrate, <NAME>. on account of the complicated questions of law, which arose, proceeded under S. 146(1) Crl. P. C. This section has been newly introduced and states that if the magistrate is of opinion that none of the parties was them in such possession, or is unable to decide as to which of them was then in such possession, of the subject of dispute, he may attach it and draw up a statement of the facts of the case and forward the record of the proceeding to a civil court of competent jurisdiction to decide the question whether any and which of the parties was in possession of the subject of dispute at the date of the order as explained in sub-s. (4) of S. 145, and he shall direct the parties to appear before the civil court on a date to be fixed by him.

In this case that procedure was adopted and the learned subordinate, <NAME> on receipt of the reference perused the evidence on record and took further evidence produced by the parties respectively, considered the effect of all such evidence, and decided the question of possession so referred to it. The learned Subordinate Judge has sent his findings to the magistrate. The magistrate on receipt of these proceedings has disposed of the matter under S. 145 in conformity with the decision of the civil court. That decision was that the counter petitioner was possession of the lands in dispute on the relevant date and which conclusion was on a consideration of all the circumstance of the case and after preferring the affidavits fired on behalf of the counter petitioner to those of the petitioner.

(3) Two applications are now preferred, first against the order of the magistrate dismissing the petition and secondly against the opinion of the learned Subordinate Judge transmitted to the magistrate and in conformity of which the magistrate has decided the case.

(4) So far as the merits of the case are concerned, the revision petitioner has no case. On acceptable and relevant evidence it has been found that the counter petitioner was in possession of the lands in dispute on the relevant date prescribed under Ss. 145 and 146 Crl. P. C. This finding is of course subject to adjudication in the civil court. I am unable to see how the conclusion set out can be held to be not in accordance with the evidence in the case. Therefore, the dismissal of the petition was quite proper.

(5) In regard to the revision which is sought to be preferred against the proceedings of the learned Subordinate Judge, one has only to look at S. 146(1)(d), which lays down that no appeal shall lie from any finding of the civil court given on a reference under this section nor shall any review or revision of any such finding be allowed. In other words, the parliament in the exercise of its undoubted and unquestionable power has limited the revisional powers of this court to this extent, viz., that the case of findings given under S. 146 Crl. P. C. no revision shall lie and has thereby provided against mischievous consequences and duplicated wasteful court work (6) This point also is concluded by authority--vide <CITATION> , .

(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 court.

(8) This provision is akin to and an improvement on the old system of the Hindu Pandits and Muslim Muftis who furnished opinions to the courts expounding the Hindu and Muslim law applicable to the cases referred to them and courts gave decisions in accordance with those expositions. (For an interesting discussion of this topic see Rt. Hon'ble Sir <NAME>, sometime <ORG>, Background to Indian law, (<ORG>) pages 4-5).

(9) The objective of <ORG> as to harmoniously combine the intimate revenue knowledge of the Executive magistrate in actual touch with the locality, with the sound legal knowledge of the fundamental principles of jurisprudence regarding title and possession by the munsif.

(10) Therefore, this civil revision petition also has got to be dismisseAd and it is hereby dismissed.

(11) Revision dismissed.


<NAME>, J.

1. The above writ petition has been filed for the issue of a writ of certiorari to call for and quash the proceedings of the third respondent in A.No. 79/83 (CBE) (D), dated 27.12.1983.

2. The petitioners are manufacturers of straight length pipes (bevelled at ends), water well casing pipes, pipe bends, rolled and welded pipe work, boiler tubes, etc., and were assessed on the file of the Superintendent of <ORG>, Hosur. It is claimed that under a mistake of law, excise duty was paid on those goods under tariff item (T.I.) 68 of the <ORG> Tariff. The petitioners also claimed that they buy the duty-paid pipes and merely bend or process the pipes and coming to know of the orders of <ORG>, New Delhi dated 28.2.1981 issued in the matter of M/s. Stewards and <ORG>, Calcutta, the petitioners sought for reclassification of their products under T.I. 26AA (IV) of the <ORG> Tariff. On an application submitted on 22.8.1983, it is claimed that revised classification was approved by the first respondent. Thereupon, the petitioners filed an application on 26.8.1983 claiming refund of a sum of Rs. 6,19,444.65 after adjusting a sum of Rs. 44,732.03 on exports, which according to the petitioners was erroneously paid for the period from 12.5.1981 to 28.8.1983.

3. The second respondent, before whom the said application for refund was filed, issued a notice dated 19.9.1983 proposing to reject the claim as time barred under Section 11-B(1) of the Central Excises and Salt Act , 1944 and the petitioners submitted their objections on 30.9.1983 contending that the commodity manufactured by them was not excisable since the -pipes had already suffered duty and not only there cannot be any fresh duty, but the duty paid was under a total mistake and consequently, no period of limitation will apply to make their claim. The petitioners claim to have placed reliance upon the decision in <CITATION> . (1975 ELT J 154) and other decisions in support of their stand. The second respondent by his proceedings dated 12.10.1983 ordered the refund of Rs. 3,01,915.73 in full settlement of the claim made by the petitioners on 26.8.1983.

4. While matters stood thus, the petitioners received a" notice from the third respondent that an appeal had been filed against the refund granted by the second respondent by the Assistant Collector of <ORG> (Audit), Coimbatore as per the authorisation letter from the Collector of <ORG>, Coimbatore. The petitioners submitted their objections to the appeal as required by the third respondent, contending that the second respondent had granted refund applying the ratio of the decision' of <ORG> in <CITATION> (83 ELT 1495) and that the department had not challenged the revised classification list approved by the second respondent and since the duty was paid under a mistake of law, the proceedings now instituted are not maintainable at the instance of the Collector of <ORG>, Coimbatore. The third respondent also called for Memo of Cross Objections by his notice dated 17.11.1983 to be submitted within 30 days. Thereupon, under the impugned order dated 27.12.1983, the third respondent set aside the communication of the third respondent dated 12.10.1983 and further directed that the petitioners should re-credit the amount within 7 days from the receipt of the said order made an appeal. The third respondent has exercised powers under Section 11-B and particularly placed reliance on Section 11-B (%) of the Act. Hence, the above writ petition.

5. In the affidavit filed in support of the above writ petition, it is contended that under Section 35-E of the Act, the Collector of Central Excise has to direct the very adjudicating authority whose decision or order calls for determination, to apply to the Collector (Appeals) and does not empower any other authority to file an appeal and consequently, the appeal filed by the different authority than the adjudicating authority is non est. It is also contended that the application can be only to seek a reference and cannot be treated as an outright revision/appeal to set aside an order of the adjudicating authority and the third respondent has only power to decide the issue and remit the matter with his opinion to the adjudicating authority to pass consequential orders and cannot by himself set aside the order. It is also contended in the said affidavit that the appellate authority exercising powers Under Section 35-A of the Act can merely decide an issue and refer a case to the adjudicating authority and thereafter the procedure contemplated under Section 11-A of the Act has to be followed. Before calling for repayment or duty allegedly short-levied or erroneously refunded and the absence of service of any such show-cause notice by any of the respondents vitiates the impugned order. It is the further contention of the petitioners that the amount was originally paid and collected under a mistake which was common to the petitioners as well as the department, that when the error was pointed out, the goods were reclassified by an order dated 24.8.1983 for future clearances and the inevitable consequence of the approval of the reclassification was that the goods were never taxable under T.I. 68 of the Central Excise Tariff and since the other assessees similarly situated had not remitted duty during the period between 12.5.1981 and 28.8.1983, the collection from the petitioners alone is discriminatory and violative of Article 14 of the Constitution of India and consequently, the bar of limitation stipulated under Section 11-B(1) of the Act and the bar of jurisdiction stipulated in Section 11-B(1) and (5) cannot be put against the petitioners.

6. The respondents have filed a counter affidavit contending that the petitioners are manufacturers of elbows, reducers, tees which are pipe fittings in their factory at Hosur, that on the basis of the classification list submitted by the petitioners those goods were classified under tariff item 68 and accordingly, the petitioners were paying duty and that when subsequently the petitioners sought for reclassification of their products under tariff item 26 AA (iv) by filing a revised classification list on 22.8.1983, the claim was considered and accepted by the Assistant Collector, <ORG>, Hosur. While accepting the position that thereafter the petitioners filed a refund claim for the period between 12.5.1981 to 26.8.1983, it is contended that there was no protest or objection from the petitioners for classification of their products under T.I. 68 till 22.8.1983 when the revised classification list was filed, and that, therefore, any claim for refund of any duty of excise has to be considered in the context of the provisions contained under Section 11-B of the <ORG>s and Salt Act , 1944. Consequently, it is also contended that the refund claim should have been made within a period of six months from the relevant date, namely, the date of payment of duty and inasmuch as the refund claim was received by the second respondent only on 26.8.1983 a portion of the claim pertaining to the period from 12.5.1981 to 16.2.1983 was found to be inadmissible in view of the bar of limitation prescribed under Section 11-B of the Act and it is only on that account, a sum of Rs. 3,17,528.92 pertaining to the period from 27.2.1983 to 26.8.1983 alone was sanctioned for refund to the petitioners and so far as the claim for the period prior to 26.2.1983 is concerned, a notice was issued to the petitioners to show cause against why the claim for refund for the period prior to 26.2.1983 should not be rejected as hit by the bar of limitation contained in Section 11-B of the Act.

7. The respondents also state that the Collector of Central Excise, who examined the records relevant to the refund claim exercised his powers under Section 35-E of the Act by issuing a direction to the Assistant Collector of Central Excise to file an appeal before the Collector of Central Excise (Appeals) under Section 35-E of the Act and the Appellate Collector, after inviting cross objections from the petitioners, by forwarding a copy of the appeal, came to the conclusion that the Assistant Collector of Central Excise had no powers to overlook the mandatory provisions of Section 11-B of the Act and consequently, the refund for the period from 12.5.1981 to 26.2.1983 was hit by the bar of limitation under Section 11-B of the Act. Admittedly, the Appellate Collector directed the petitioners to recredit the amount refunded erroneously to them. It is also stated that the petitioners had an effective alternative remedy by filing an appeal before the Tribunal (<ORG>) and, therefore, the writ petition is not maintainable.

8. While traversing the various pleas raised in the affidavit to challenge the impugned order, the respondents contend that <ORG> or the Authorised Officer can make the application to <ORG> or the Collector (Appeals), that the plea based on the absence of notice is misconceived, that the procedure prescribed under Section 35-E of the Act has been directly complied with in forwarding a copy of the appeal filed and also by inviting cross objections from the petitioners and giving a personal hearing before passing final orders by the Appellate Collector and that no further show-cause notice is contemplated under Section 35-E of the Act. The respondents also contend that there is vast and substantial difference between the procedure to be followed in disposing of an appeal filed under Section 35-A of the Act and the exercise of powers under Section 35-E of the Act. It is also contended that the forwarding of the copy of the appeal and the opportunity given to file a cross objection constitute sufficient compliance with law and there was no need for any further show-cause notice to be issued and that the plea of the petitioners to the contra would run counter to the stipulations contained in Section 35-E of the Act. The respondents also deny the claim of the petitioners that the Collector of Central Excise (Appeals) exercising powers under Section 35-E of the Act can only decide and remand back to the original authority and cannot set aside the order and there is no such restriction warranted in the provisions contained in Section 35-E either expressly or by implication. While contending that the only issue for determination is whether the time barred refund is justifiable or not, the respondents contend that once the Appellate Collector came to the conclusion that the claim for refund was time barred and refund was erroneously made, the appellate Collector was well within his jurisdiction for ordering recovery from the petitioners. The decision in <CITATION> (83 ELT 1495) (supra) is said to be not applicable since according to the respondents, they were rendered under the provisions with a different scheme underlying them, and that the specific mandate contained in Section 11-B of the Act militates against the applicability of the decision of <ORG> to the case on hand. It is also contended that any claim arising out of a reclassification could be considered only in the context of Section 11-B of the Act and the mandatory requirements of the law as enshrined therein cannot be overlooked. It is also contended that the specific stipulation of a period of limitation under Section 11-B(5) of the Act was with a view to prevent unjust enrichment in cases where the parties have collected the money from their consumers as duty of excise either intentionally or by mistake of law and subsequently claim them also from the department irrespective of any time limit and consequently there was nothing unconstitutional about the impugned orders passed by the Appellate Collector.

9. Mr. <NAME>, learned Counsel for the petitioners contended as follows:- That having regard to the provisions contained in Section 11-A and the proviso to the said Section conferring power upon the Assistant Collector within 6 months and the Collector under certain circumstances within a period of five years there is no scope for having recourse to Section 35-E of the Act for the recovery of the duty erroneously refunded. It is also contended that even when a direction under Section 35-E(2) is issued, the Collector of Appeals can, in the appeal filed, only determine about the legality of the order passed under Section 11-B , and there is no power in the Collector of Appeals to issue a positive direction for repayment or recovery of the duty erroneously refunded earlier, de hors Section 11-A of the Act. The further submission of the learned Counsel for the petitioner is that even assuming that the Collector of Appeals, while disposing of the appeal under Section 35-E could have passed orders under Section 35-A(3) for the recovery of the duty erroneously refunded; the same could not have been done without complying with the requirements of the proviso by issuing a show-cause notice and also complying with Section 11-A of the Act. In substance, the plea of the learned Counsel for the petitioner is that recovery of any duty erroneously refunded under Section 11-B could be made only under Section 11-A and even while exercising the powers of revision or appeal, there could not be any positive order for recovery without meticulously complying with the stipulations contained in Section 11-A of the Act. The entire stand of the petitioner is built upon the supremacy of Section 11-A of the Act and that even Section 35-E of the Act is subject to Section 11-A of the Act and without conforming to the stipulations and conditions contained in Section 11-A , no positive order for recovery of the duty erroneously refunded could be passed under any provisions of the Act and particularly Section 35-E .

The decisions referred to by the learned Counsel in support of his stand will be considered, at the appropriate stage.

10. Mr. <NAME>, learned Counsel appearing for the respondents contended that in view of the direction by the Collector to file an appeal to <NAME>, and the issue of notice of appeal with a direction to file cross objections, if any, to the demand made by the department, there is no need to again have recourse to or comply with the stipulations contained in Section 11-A of the Act. It is also the contention of the learned Counsel for the department that the powers under Section 11-A and the appellate as well as revisional powers conferred under the other provisions like Sections 35-A , 35-E , etc., are distinct and separate, each of them with well defined and settled norms and distinctions and subject to the conditions specified in the respective provisions and the provisions contained in Section 11-A cannot be dovetailed into the other provisions or that the exercise of power under other provisions by the Appellate and Revisional Authorities cannot be subjected to or made dependent upon compliance with the criteria or restrictions under Section 11-A of the Act. Finally, the learned Counsel contended that while setting aside the order under Section 11-B , the competent authority entrusted with such power has as a necessary corollary to inevitably also pass orders for the return or repayment or recovery of the duty erroneously refunded. In effect, it was contended that accepting the plea of the petitioner would amount to allowing the provisions of Section 35-E to become otiose and render completely nugatory leading to absurd results.

11. The relevant provisions of the Act which require to be noticed are as follows:-

Section 11-A . (1) When any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, a Central Excise Officer may, within six months from the relevant date, serve notice on the person chargeable with the duty which has not been levied or paid or which has been short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice:

Provided that where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of fraud, collusion or any wilful misstatement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, by such person or his agent, the provisions of this sub-section shall have effect, as if for the words, 'six months', the words 'five years' were substituted.

Explanation: Where the service of the notice is stayed by an order of a <ORG>, the period of such stay shall be excluded in computing the aforesaid period of six months or five years, as the case may be.

Section 35-A . Procedure in appeal: (1) The Collector (Appeals) shall give an opportunity to the appellant to be heard, if he so desires.

(2) The Collector (Appeals) may, at the hearing of an appeal, allow an appellant to go into any ground of appeal not specified in the grounds of appeal, if the Collector (Appeals) is satisfied that the omission of that ground from the grounds of appeal was not wilful or unreasonable.

(3) The Collector (Appeals) may, after making such further inquiry as may be necessary, pass such order as he thinks fit confirming, modifying or annulling the decision or order appealed against, or may refer the case back to the adjudicating authority with such directions as he may think fit for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary.

Provided that an order enhancing any penalty or fine in lieu of confiscation or confiscating goods of greater value or reducing the amount of refund shall not be passed unless the appellant has been given a reasonable opportunity of showing cause against the proposed order:

Provided further that where the Collector (Appeals) is of opinion that any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, no order requiring the appellant to pay any duty not levied or paid, short-levied or short-paid or erroneously refunded shall be passed unless the appellant is given notice within the time-limit specified in Section 11-A to show cause against the proposed order.

(4) The order of the Collector (Appeals) disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reason for the decision.

(5) On the disposal of the appeal, the Collector (Appeals) shall communicate the order passed by him to the appellant, the adjudicating authority and the Collector of <ORG>.

Section 35-E . Powers of <ORG> or Collector of Central Excise to pass certain orders:- (1) The <ORG> may, of its own motion, call for and examine the record of any proceeding in which a Collector of Central Excise as an adjudicating authority has passed any decision or order under this Act for the purpose of satisfying itself as to the legality or propriety of any such decision or order and may, by order, direct such Collector to apply to <ORG> for the determination of such points arising out of the decision or order as may be specified by the <ORG> in its order.

(2) The Collector of Central Excise may, of his own motion call for and examine the record of any proceeding in which an adjudicating authority subordinate to him has passed any decision or order under this Act for the purpose of satisfying himself as to the legality or propriety of any such decision or order and may, by order, direct such authority to apply to the Collector (Appeals) for the determination of such points arising out of the decision or order as may be specified by the Collector of Central Excise in his order.

(3)No order shall me made under Sub-section (1) or Sub-section (2) after the expiry of one year , from the date of the decision or order of the adjudicating authority.

(4)Where in pursuance of an order under Sub-section (1) or Sub-section (2) the adjudicating authority or the authorised officer makes an application to <ORG> or the Collector (Appeals) within a period of three months from the date of communication of the order under Sub-section (1) or Sub-section (2) to the adjudicating authority, such application shall be heard by <ORG> or the Collector (Appeals), as the case may be, as if such application were an appeal made against the decision or order of the adjudicating authority and the provisions of this Act regarding appeals including the provisions of Sub-section (4) of Section 35-B shall, so far as may be, apply to such application.

12. Before adjudicating upon the issues raised, it would be useful to refer to the various judicial pronouncements and the opinion of the Tribunals, pressed into service by the counsel appearing on either side to substantiate their respective stands. The decision of <ORG> of <ORG> reported in AIR 1962 Calcutta, 258 ( <CITATION> .) was the one rendered construing the relative scope of Sections 39 and 190-A of the [Sea] <ORG> Act , 1878. While considering the case of a claim by the <ORG> Officer for payment of duty erroneously refunded by the department, the Division Bench of <ORG> held it was required to be taken under Section 39 of the said Act within three months from the relevant date and that the period of limitation prescribed under Section 190-A cannot override the express provision in Section 39 which limits the issue of notice of demand for payment of duties not levied or short levied or erroneously refunded to a period of three months. To come to such a conclusion, the learned Judges considered that there was really no conflict between Sections 39 and 190-A , that whereas Chapter V comprising Section 39 deals with rights and liabilities, Chapter XVII in which Section 190-A occurs contains procedural provisions, that where a general intention as well as a particular intention has been expressed in the Act and both are incompatible with each other, the particular intention is to be considered as an exception to the general one and consequently, the period of limitation prescribed under Section 39 must prevail and cannot, therefore, be destroyed or overridden by Section 190-A and the limitation stipulated therein.

13. A Division Bench of <ORG>, in a decision reported in 1981 ELT 114 (Delhi) ( <CITATION> .) construed the scope of Rule 10 and Rule 173-J of the Central Excise Rules and held that as there could be no non-levy or short-levy except by a process of assessment and likewise a refund could have been directed only after making a like determination of quasi-judicial nature and not only Rule 10 applied to such a case but Rule 173-J also applies to the review of a case of erroneous refund under Rule 10 and in substance, it only directs the application of Rule 10 in certain cases with a modification regarding the period of limitation. In 1985 (22) ELT 892 (T) <ORG> of the CEGAT at Madras ( <CITATION> ) had an occasion to deal with a situation of the nature which has arisen in the present writ petition and the Tribunal expressed the view that the prescription of limitation under Section 11-A does not mean that even the revisional power of the Collector, a superior authority, could be equated to the limited power of review conferred upon the Assistant Collector, an authority below in the hierarchy or that Section 35-E(3) could be rendered nugatory by reading into the said provision a limitation stipulated under Section 11-A . The decision of <ORG> in (supra) has been distinguished on the ground that the provisions of the Sea Customs Act, 1878 and that of the Central Excises and Salt Act , 1944 are not in pari materia.

14. Another Bench of the CEGAT at New Delhi in two separate opinions rendered and - <CITATION> and 1988 (37) ELT 22 (T)-Collector of Central Excise v. <ORG>, took a contra view holding that demand by the department for repayment of duty erroneously refunded could be only under Section 11-A and within the time stipulated therefor and the period of limitation provided therein cannot be circumvented by having recourse to Section 35-E of the Act.

15. In ( <CITATION> ), <ORG> has held that the provisions of Section 11-A(1) and (2) of the Central Excises and Salt Act , 1944 make it clear that the statutory scheme is that in the situations covered by Sub-section (1) a notice of show-cause has to be issued and Sub-section (2) requires that the cause shown by way of representation has to be considered by the prescribed authority and then only the amount has to be determined. The said Scheme underlying the above provision was considered to be in consonance with the rules of natural justice and, therefore, notice is a condition precedent to a demand under Sub-section (2). In AIR 1988 SC 236 ( <CITATION> .), <ORG> held that before any demand was made on any person chargeable in respect of non-levy or short-levy or under-payment of duty a notice requiring him to show-cause why he should not pay the amounts specified in the notice must be served on him and the admitted absence of a prior show-cause notice vitiated the impugned proceedings in that case. As a matter of fact, it was also pointed out therein that under Section 11-A of the Act the notice can relate only to a period of six months prior to the issue of that notice, except in cases where it was alleged that the short levy or short payment has occurred by reason of fraud, collusion or wilful mis-representation or suppression of facts or contravention of the provisions of the Act and the rules and the actual notice issued in that case could be of prospective consequence and the post facto show-cause notice could not be regarded as adequate in law. The decision ( <CITATION> ) is one where <ORG> among other things was considering the question of the impact of Section 51 of the Finance Act, 1982 and the constitutional validity of giving retrospective effect to the amendments to Rules 9 and 49 of the Central Excise Rules from 28.2.1944, which provided for the collection of duty levied on the production of a commodity at an intermediate stage of an integrated process of manufacture of another commodity by deeming such production or manufacture of the commodity at an intermediate stage to be removal from such place or premises of manufacture. While repelling a challenge based upon Articles 14 and 19(1)(g) of the Constitution of India, <ORG> held as follows:-

Under Section 11-A(1) the excise authorities cannot recover duties not levied or not paid or short-levied or short-paid or erroneously refunded beyond the period of six months, the proviso to Section 11-A not being applicable in the present case. Thus although Section 51 , Finance Act , 1982 has given retrospective effect to the amendments of Rules 9 and provision of Section 11-A of the Act. We are unable to accept the contention of the learned Attorney General that as Section 51 has made the amendments retrospective in operation since Feb. 28, 1944, it should be held that it overrides the provision of Section 11-A . If the intention of the <ORG> was to nullify the effect of Section 11-A , in that case, the <ORG> would have specifically provided for the same. Section 51 does not contain any non obstante clause, nor does it refer to the provision Section of 11-A. In the circumstances, it is difficult to hold that Section 51 overrides the provision of Section 11-A . (para 32).

There is no provision in the Act or in the Rules enabling the excise authorities to make any demand beyond the periods mentioned in Section 11-A of the Act on the ground of the accrual of cause of action. The question that is really involved is whether in view of Section 51 , Finance Act , 1982, Section 11-A should be ignored or not. In our view Section 51 does not, in any manner, affect the provision of Section 11-A of the Act. In the absence of any specific provision overriding Section 11-A , it will be consistent with rules of harmonious construction to hold that Section 51 , Finance Act , 1982 insofar as it gives retrospective effect to the amendments made to Rules 9 and 49 of the Rules, is subject to the provision of Section 11-A . (para 34)

16. After a careful consideration of the submissions of the learned Counsel appearing on either side in the light of the judicial pronouncements placed before me and the relevant provisions of law and the indisputable material of facts on record, I am of the view that the submissions on behalf of the petitioner have no merit and do not merit countenance in my hands. So far as the decisions of <ORG> referred to before me are concerned, they had no occasion to deal with or decide the issue that is relevant or raised before me in this case. The observations made were merely on the scope of Section 11-A and the necessary formalities to be observed and the conditions to be satisfied for invoking the powers under Section 11-A of the Act. The impact of an interaction of the said provision with the provision contained in Section 35-A and Section 35-E was not at all considered in any of the decisions of <ORG> but were in issue and considered only in the opinion expressed by some of the <ORG> and whereas the branch of the <ORG> at South had taken a view favourable to the <ORG>, the Branch of <ORG> took a view supporting the stand point of an assessee-manufacturer. a careful analysis and perusal of the orders of the <ORG> in <CITATION> ) and <CITATION> . (supra) would go to show that greater emphasis and effect was given by them only to Section 11-A at the expense and in derogation of Section 35-E of the Act and in utter disregard of the jurisdiction of the authority exercising powers under Section 35-E of the Act. While the orders of the <ORG> proceeded to hold that there is nothing in any part of the Act that can counteract Section 11-A and that resort to Section 35-E cannot have the effect of nullifying Section 11-A and the time limit stipulated therein and that such an interpretation would have the effect of rendering Section 11-A otiose, they have totally lost sight of the position that dovetailing Section 11-A into Section 35-E would equally have the effect of nullifying and making Section 35-E wholly redundant and would also result in completely obliterating the said provision from the statute itself. Such an interpretation also cannot be said to be a proper or reasonable one.

17. On a careful analysis of the provisions contained in Sections 11-A , 35-A and 35-E it could be seen that the powers conferred are upon different authorities to be exercised in different circumstances and fact situations. Section 11-A(1) of the Act confers powers upon a Central Excise Officer, in the nature of a review or reconsideration, though the proviso confers powers under certain specified circumstances upon the Collector of Central Excise. It is only the Collector of Appeals who has been conferred powers under Section 35-A in an appeal filed by an assessee and again under Section 35-E(4) in respect of a proceeding instituted by the department. In view of the above, one provision is not and cannot be also derogatory of the other, either in respect of the power or the authority entrusted with such power under different provisions of the Act. In substance, those provisions are mutually exclusive in their scope, extent and purport only and resort can be had to either one or more than one of such powers depending upon the exigencies of the situation and the exercise of one is not destructive of the other. The dicta of <ORG> in the decision in <CITATION> . [] may be usefully referred, though rendered under the Bihar and Orissa Co-operative Societies Act , 1935. Regarding the availability of more than one remedy and the manner in which it could be invoked or exercised, it was held as follows:-

<ORG> has in its judgment assumed that whenever a specific remedy is made available in law the other remedy, more general in nature, necessarily gets excluded.

6. Validity of plural remedies, if available under the law, cannot be doubted. If any standard book on the subject is examined, it will be found that the debate is directed to the application of the principle of election, where two or more remedies are available to a person. Even if the two remedies happen to be inconsistent, they continue for the person concerned to choose from, until he elects one of them, commencing an action accordingly. In the present case there is no such problem as no steps under Section 40 were ever taken by the appellant. The provisions of Section 48 must, therefore, be held to be available to the appellant for recovery of the loss.

7. Our view that a matter which may attract Section 40 of the Act will continue to be governed by Section 48 also if the necessary conditions are fulfilled, is consistent with the decision of this Court in <CITATION> (1991 Supp. (2) SCC 215) arising under the Delhi Co-operative Societies Act , 1972. The two Acts are similar and Section 40 and 48 of the Bihar Act and Section 59 and 60 of the Delhi Act are in pari materia. The reported judgment followed an earlier decision of this Court in <CITATION> . [(1965) 1 SCR 186]. We accordingly hold that <ORG> was in error in assuming that the application of provisions of Section 48 of the Bihar Act could not be applied to the present case for the reason that Section 40 was attracted.

8. So far the question of limitation is concerned, it is true that as in the Delhi Act , a period of six years was fixed under the Bihar Act also by second proviso under Section 40(1) , which reads thus:

'Provided further that no order shall be passed under this sub-section in respect of any act or omission mentioned in Clause (a), (b), (c) or (d) except within six years of the date on which such act or omission occurred.' It will be observed that the six years rule of limitation, however, is limited for the purpose of Section 40 , and cannot govern the reference under Section 48 . The relevant provision of Section 48 is to be found in the proviso to Section 48(1) which has been quoted above. For determining its impact on the present case, it is necessary to examine the proviso closely. Firstly, both the proviso and Section 63 of the Act are concerned only where the claim is against a member. Even if the proviso be assumed to govern a dispute between the society and its past or present officer or servant it cannot come to the aid of the present respondent-1 because he was dismissed from service on October 15, 1966 and he was directed to deposit the disputed amount within 30 days therefrom. The dispute was referred for adjudication under Section 48 on December 12, 1966 and the reference was registered as Award Case No. 25 of 1968 on August 3, 1968. Thus all these steps were taken within a period of two years. No reliance, therefore, can be placed on either Section 32 or 63.

18. Similar issue has come up before this Court on more than one occasion under the Tamil Nadu General Sales Tax Act, 1959, of the relative scope and effect of Section 16 and 32 or 34, of the said Act and the limitations prescribed for the exercise of those powers. A Division Bench of this Court to which I was a party while following the decision of an earlier Division Bench in <CITATION> [1989 (74) STC 364] held in the decision in <NAME> and Co. v. The State of Tamil Nadu rep. by the Jt. Commr. of Commercial Taxes-II Madras-5 (1992 (2) MTCR 203) as hereunder:

<CITATION> (1989 (74) STC 364), another Division Bench of this Court held as hereunder:-

'The revisional order passed by <ORG> is within a period prescribed by that section. Therefore, the power of limitation prescribed under Section 16 of the Act will not apply to the revision in the instant case. Further in the decision reported in <CITATION> (1979) 44 STC 446 (Mad) while considering the scope of Sections 16 and 32 (the revision by the Deputy Commissioner is analogous to Section 34 ) it is held as follows:-

... the two sections are mutually exclusive and give different powers to different authorities. Therefore, if action could be taken under one section, it does not follow that action could not be taken under the other. Where it is possible to act under two provisions, the department may resort to the one instead of the other and it cannot be compelled to proceed under only one of the two provisions. Section 32 provides for the examination of the order passed by a subordinate authority under certain provisions set out therein. So long as the jurisdiction is exercised with respect to an order contemplated by the section, there would be no error in the exercise of jurisdiction.

<ORG> also held on the relative scope of Sections 16 and 34 in the following terms:-

On a consideration of the above decisions we are of the view that Sections 16 and 34 of the Tamil Nadu General Sales Tax Act are independent and the limitation prescribed under Section 16 will not be applicable to a revision under Section 34 of the Act and in any event, in this case, since the original assessment was not revised under Section 16 the limitation prescribed under Section 16 will not be applicable to a revision under Section 34 . Further, we are of the view that Section 34 gives wide power to reassess the turnover as in the case of the original assessing authority.

15. The exercise of powers, so far as the present case before us is concerned, is one, in our view, squarely coming within the four corners of suo motu revisional powers conferred upon the Joint Commissioner under Section 34 of the Act and consequently there is no merit whatsoever in the plea made on behalf of the appellants that it has also to satisfy the period of limitation as prescribed under Section 16(1) of the Act. The provisions of Section 34 of the Act contain their own period of limitation and the exercise of power by the Joint Commissioner is well within the said period of limitation.

19. Consequently, in my view, there is absolutely, no warrant or justification to restrict the scope and amplitude of the powers of the Collector of Appeals under Section 35-E by reading into it the provisions of Section 11-A of the Act. Such a construction is not permissible under any known or well accepted principles of interpretation governing similar provisions, particularly in fiscal enactment and while construing provisions meant to prevent evasion of tax liability. The plea that Section 11-A is a special provision and therefore cannot be allowed to be overtaken by Section 35-E or that Section 11-A is a substantive provision unlike a procedural provision of the nature in Section 35-E has no rhyme or reason. An appellate or revisional provision is as much a provision of law conferring substantive rights as a provision regulating refund or recovery of an amount erroneously refunded. The decisions of <ORG> were concerned with the scope of Section 11-A only and they have not dealt with the relative scope of Section 11-A and the other provisions or the issue as to whether the provisions in Section 11-A have overriding effect on the provisions in Section 35-A or 35-E or even as to whether Section 11-A has to be dovetailed into Section 35-A and 35-E of the Act, in cases of recovery of erroneously refunded duty. Consequently, these decisions cannot be the authority to support the stand of the petitioners. For all the reasons stated above, I am unable to subscribe to the view expressed by <ORG> or <ORG> at New Delhi, relied upon for the petitioners.

20. The further plea that in view of the mandate in Section 35-E(4) that the application filed shall be heard and disposed of as if the same were an appeal and consequently compliance with Section 11-A cannot be avoided in view of Section 35-A(3) second proviso, though would appear attractive cannot merit acceptance. The specific stipulation is that "the provisions of this Act regarding appeals including the provisions of Sub-section (4) of Section 35-B shall, so far as may be apply to such application", (emphasis supplied Here italicised). The two provisos incorporated to Section 35-A(3) deal with cases which are in the nature of suo motii exercise of power or the right of cross objections for the department in an appeal filed by an assessee appellant seeking relief for himself so far as against the order is against him (sic). Section 35-E is meant to confer a right upon the <ORG> to file an application before <NAME> of course only on a direction from the Collector of <ORG>, for the determination of the points arising out of the order of an adjudicating authority, and it is only treated as an appeal for certain purposes. The specific stipulation in Section 35-E(4) that "such application shall be heard by <ORG> or the Collector (Appeals), as the case may be, as if such application were an appeal made against the decision or order of the adjudicating authority", does not have the consequence of converting it as a regular appeal of an assessee subject to all the stipulations, including those which are required to be observed in passing an order against the interests of an assessee in his appeal. On the other hand, the words "shall be heard as if such application were an appeal so far as may be apply to such application" would go to show and lay emphasis to the fact that the hearing of the application shall be as if an appeal is to be heard and that too following the provisions relating to the hearing of the appeal so far as may be applicable and not in every sense. In an application filed under Section 35-E(4) on the directions of the Collector of <ORG>, the very issue would be against the interests of the assessee who has not himself filed an appeal, and there is no scope or occasion for forming an opinion by <ORG> and then issuing any notice to the assessee. On the other hand, once an application has been filed under Section 35-E(4) notice has to be issued inevitably and automatically to the assessee and after hearing him the same should be disposed of as such and the assessee communicated with the order as visualised under Sub-section (4) and (5) of Section 35-A . The deeming of the application filed under Section 35-E(4) as if it were an appeal is only for such limited purpose and the same cannot be enlarged beyond its legitimate purpose. The submission for the petitioner to the contrary has no substance or merit whatsoever.

21. So far as the facts and circumstances of the case are concerned, there is no dispute that the impugned order came to be passed within the six months period visualised under Section 11-A and that notice of the application filed under Section 35-E(4) was also served upon the petitioner calling upon him also to file his cross objections, if any, and he was fully heard and then orders have been passed and communicated to the petitioner, also. There is no need to follow the procedure prescribed under Section 11-A once over again. So far as the facts and circumstances of the present case are concerned, it may also be taken that the provisions of Section 11-A have also been substantially and effectively complied with when the procedure under Section 35-E has been followed and notices have been issued and no legitimate or real grievance whatsoever could be made by the petitioners. There is also no substance or merit in the plea that the authority exercising power under Section 35-E(4) can only set aside the order of the adjudicating authority and cannot direct refund to the <ORG> or order recovery of the amount erroneously refunded. When the very order, as in this case, that is the subject matter in issue in the application filed under Section 35-E(4) is the earlier order of refund passed by the adjudicating authority, and the legality and propriety of passing such an order, while the Collector of Appeals sets aside such an order, the Collector of Appealls shall be entitled as of necessity to direct the return or repayment or recovery of the money erroneously refunded. Such powers are conserved to the Appellate Collector as a necessary and incidental power essential for the effective discharge of the jurisdiction under Section 35-E(4) of the Act. Otherwise, it would be a futile exercise of powers and such a construction cannot be countenanced at all by <ORG> and render an effective power conferred really purposeless or useless. The impugned order, therefore, does not call for any interference in these proceedings.

22. For all the reasons stated supra, the writ petition fails and shall stand dismissed. No costs.