Smt. Kashamma vs Sri Mahadevappa and Others

Chidananda Ullal and H.N. Nagamohan Das, JJ.—Respondent Nos. 1 to 10 filed O.S. No. 4/1981 against respondent Nos. 11 to 16 for partition and separate possession of plaint schedule properties and the same came to be decreed in part. Subsequently the decree of the trial Court came to be confirmed in R.A. No. 68/1987 and finally in R.S.A. No. 700/1993. Thereafter respondent Nos. 1 to 10 filed F.D.P. No. 4/2000 to draw the final decree. In this F.D.P. No. 4/2000 petitioner fifed I.A. No. 5 under Order 1 Rule 10 CPC to implead her as a party to the final decree proceedings. The trial Court vide order dated 25.11.2006 dismissed I.A. No. 5 by holding that the petitioner is not a necessary party to the final decree proceedings. Aggrieved by this order of the trial Court petitioner filed C.R.P. No. 828/2006 u/s 115 CPC. Learned Single Judge after hearing learned Counsel for the petitioner referred the matter to the Division Bench on the question of maintainability of revision petition u/s 115 CPC and the same reads as under:

The question as to whether the proceeding relating to the petitioner''s application - I.A. No. 5 itself is ''Other proceeding'' within the meaning of the aforesaid proviso may require consideration. Hence, I deem it appropriate to refer this revision petition to a Division Bench for consideration in exercise of the power conferred on me u/s 8 of the Karnataka High Court Act, 1961. Registry to list this petition before the appropriate Division Bench.

Learned Counsel for petitioner contends, that under the impugned order of the trial Court the right of the petitioner to implead herself as a party to the final decree proceedings is finally decided. Therefore a civil revision petition is maintainable. It is further contended that the impugned order passed under Order 1 Rule 10 CPC is not an appeallable order. Therefore it is contended that civil revision petition u/s 115 CPC is maintainable.

Learned Counsel for respondents contend, that the impugned order will not amount to termination of proceedings in F.D.P. No. 4/2000 and as such the civil revision petition u/s 115 CPC is not maintainable. It is further contended that proviso to Section 115(1) CPC specifies, that except where the order, if it had been made in favour of the party applying for revision would have finally disposed off the suit or other proceedings. He contends that civil revision petition u/s 115 CPC is not maintainable.

Heard arguments on both the side and perused the entire writ papers.

Prior to amendment of CPC in the year 2002, Section 115 CPC read as under:

Revision.- (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears-

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity,

the High Court may make such order in the case as it thinks fit:

(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.

Section 115 CPC deals with the revisional power of the High Courts. If the order of the trial Court is not an appellable order, then the High Court is empowered to call for the record of a case and if the Court has exercised jurisdiction not vested in it by law or failed to exercise jurisdiction vested by law or acted with material irregularity etc., the High Court can interfere. But by experience it is felt that quite often the cause of delay m the trial of suites is the entertainment of petitions for revision against the interlocutory orders which invariably result in stay of proceedings. Realising this situation the Parliament in its wisdom amended Section 115 CPC by Act No. 46/1999 which came into effect on 01.07.2002. Under this Act No. 46/1999 the proviso to Section 115(1) and Section 115(3) came to be introduced. The proviso to Section 115(1) is relevant to be referred to for the purpose of this case and as we see the same reads as under:

Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.

A reading of the proviso to Section 115(1) CPC specifies that the High Courts shall not u/s 115 CPC vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceedings. The exception to this is that the order passed by the inferior Courts if it had been in favour of the party applying for revision would have finally disposed of the suit or other proceedings.

In the instant case, petitioner filed I.A. No. 5 under Order 1 Rule 10 CPC as an interlocutory application. Under the impugned order the trial Court rejected I.A. No. 5. The impugned order is not act appellable order. The impugned order will not result in the termination proceedings in F.D.P. No. 4/2000. Further under the impugned order the issue involved in F.D.P. No. 4/2000 is not decided. Even if the trial Court has allowed I.A. No. 5 filed by the petitioner, it will not amount to finally disposing of the final decree proceedings. The other proceedings referred to in the proviso to Section 115 CPC in the context it is used, in our considered view is, to mean and include the proceedings before the civil Court other then a suit. For instance the proceedings u/s 24 the general power of transfer and withdraw the suit, appeal or other proceedings, Order 21 the execution, Order 33 an application for permission to sue as an indigent person etc., under the CPC.

In the instant case the petitioner is not a party to the preliminary decree in O.S. No. 4/1981. The application filed by the petitioner is an interlocutory application. The impugned order passed by the trial Court is on an interlocutory application rejecting I.A. No. 5. Therefore the impugned order will not amount to finally deciding the final decree proceedings in question by the trial Court. Therefore we are of the considered view that a civil revision petition is not maintainable and accordingly we answer the question referred to us.

If the petitioner feels that injustice has resulted under the impugned order passed by the trial Court, in our further considered view that adequate remedy is provided for in Articles 226 and 227 of the Constitution for correcting the same. At this stage, Kum. Nalina, the learned Counsel for petitioner prays that liberty may be reserved to the petitioner to file an appropriate writ petition and to direct the Registry to return the certified copy of the impugned order. The submission of the learned Counsel for petitioner is reasonable and the same is placed on record.

For the reasons stated above, we hold that as against the impugned order a civil revision petition u/s 115 CPC is not maintainable. However liberty is reserved to the petitioner to question the impugned order by filing an appropriate writ petition. On substitution of authenticated xerox copy of the impugned order, to facilitate such a course by the petitioner, the Registry is directed to return the certified copy of the impugned order to the learned Counsel for petitioner at the earliest.