In Re: P.R. Narasimhachari

Rajagopalan, J.—The petitioner seeks to revise the order of the learned Subordinate Judge, Madurai, in I.A. No. 1304 of 1955. That was

an application for the issue of a final decree. That was disposed of by the lower Court ex parte the petitioner, who was the first defendant. The

petitioner''s contention is that orders were passed in I.A. No. 1304 of 1955 without notice to him, and therefore the order is liable to be set aside

as one passed virtually without jurisdiction.

The application itself was for the issue of a final decree under Order 34, Rule 5. Final decree was ordered to issue.

The contention of the learned Counsel for the petitioner is that though the final decree itself may be appealable, the order directing that a final

decree do issue is not by itself appealable, and there can be a revision u/s 115, Civil Procedure Code. The learned Counsel relied on AIR 1944

298 (Nagpur) , and on Abdul Latif Khan Vs. Somar Kunjra and Others, . But in both these cases what the learned Judges had to consider was

the correctness or otherwise of interlocutory orders passed in proceedings on an application under Order 34, Rule 5, Civil Procedure Code.

In Ramachandra Rao v. Rattayya (1933) 66 M.L.J. 178 : ILR Mad. 437, the position was explained by Sundaram Chetty, J. '' The order

stands in the place of the judgment and the decree drawn up in pursuance of it is the final decree contemplated under the aforesaid rule ''. Applying

the test, the learned Judges held in that case that the appeal must be, deemed to be against the final decree so passed. That, if I may say so with

respect sots out the correct position of law in such cases. There was a final order as far as the application under Order 34, Rule 5, Civil Procedure

Code, was concerned, and a decree was ordered to issue. As pointed out by Sundaram Chetty, J., the order which the petitioner now seeks to

revise is really the judgment, and the final decree is the decree; and the final decree is an appealable decree.

I hold that the application for revision as such is not maintainable. The petition is rejected.

In view of what I have said about the nonmaintainability of the revision petition as such u/s 115, Civil Procedure Code, it may not be necessary

to express any opinion on the soundness or otherwise of the contentions put forward by the learned Counsel for the petitioner, that this is an order,

which on merits should be revised. Nor need I express any opinion on the question, whether, when an alternative remedy of appeal is available,

even if the order comes within the scope of Section 115, Civil Procedure Code, I should exercise my discretion in admitting the petition.