Krishnendu Dey & Ors. vs Aparesh Dey & Ors.

 At the outset, a question has arisen as to the maintainability of this application under Article 227 of the Constitution of India. The plaintiffs in a suit

for permanent injunction have challenged, in this revision, an order whereby the trial court dismissed the suit on a prima facie erroneous ground, being

merely that another partition suit was pending in connection with the same subject matter. Such exercise was undertaken by the trial court on an

application by the defendant/opposite parties challenging maintainability of the suit.

It is submitted by the learned advocate appearing on behalf of the petitioners, by placing reliance upon a decision in the case of G. Selvam & ors. vs.

Kasthuri (deceased) & ors. reported in 2015 (5) M.L.J. 835, that in the present circumstances a revision is maintainable, since no issue was decided

and there could not have been said to be an adjudication of the suit on merits.

It is seen from the said decision of the Madras High Court that a preliminary decree was set aside in revision, primarily on the premise that existence

of an appeal, as an alternative remedy, was not an absolute bar; that the judgment impugned therein was not in conformity with Order XX, rules 4 and

5 of the Code of Civil Procedure and that many of the parties to the suit had died and their heirs and legal representatives as well as the purchasers of

the land were not brought on record prior to the filing of the suit. In such circumstances, an Hon’ble Single Judge of the Madras High Court was

pleased to set aside the preliminary decree in revision.

With utmost respect, this court is unable to agree with the ratio laid down in the said decision of the Madras High Court in its entirety. Undoubtedly, if

the decree was passed in the name of a dead person, and already stood abated, there might have been scope of interference under Article 227 of the

Constitution of India since the final decree passed in such a suit could be argued to be a nullity.

However, merely because no issue was spelt out or decided specifically in terms, it could not be said that the revisional court could usurp the

jurisdiction of an appellate forum, sitting in seisin over such judgment. A perusal of definition of “decree†in Section 2(2) of the Code of Civil

Procedure makes it clear that if the rights vis-Ã -vis the suit were conclusively determined by the formal expression of an adjudication with regard to

all or any of the matters in controversy in the suit, such judgment/order would crystallize into a decree, attracting appellability under Section 96 of the

Code.

In the instant case, the rights of the parties were conclusively determined, in effect, by the dismissal of the suit filed by the petitioners, thereby giving

the colour of a decree to the impugned decision. As such, however much the impugned decision may be palpably without jurisdiction, this court

chooses to resist the temptation of interfering with the same, all the more so since exercise of such power by this court would deprive the parties of a

forum, since the impugned decision was rendered by a Civil Judge (Junior Division) and an intra-court appeal lay against the same. A decision on such

an appeal, if filed, would in turn entitle the aggrieved party to prefer a second appeal before this court under Section 100 of the Code of Civil

Procedure. As such, this court ought not to exercise such jurisdiction so as to deprive the parties of a right of such appeal.

Accordingly, C.O. No. 1395 of 2018 is dismissed only on the point of maintainability, leaving it open for the petitioners to prefer a proper challenge

before an appropriate forum against the order impugned herein. Further liberty is given to the petitioners to take back the certified copy of the order

impugned, upon compliance of all due formalities. There will be no order as to costs.