Thangaraju vs Srinivasan

R. Mala, J.—This Civil Revision Petition has arisen out of fair and decretal order dated 16.8.2007 made in R.E.A. No. 153 of 2007 in R.E.A. No. 67 of 2007 in R.E.P. No. 64 of 2005 in O.S. No. 59 of 1999 on the file of Sub-Court, Attur. The learned Counsel appearing for the Revision Petitioner/Judgment-Debtor would submit that the Respondent herein as the Plaintiff filed a Suit in O.S. No. 59 of 1999 for Specific Performance, which was decreed after contest. He preferred REP No. 31 of 2004 for execution of Sale Deed and the same was executed on 21.4.2005. After execution of Sale Deed, the Plaintiff/Respondent herein filed R.E.P. No. 64 of 2005 for possession of the property. During that period, the Revision Petitioner/Defendant''s a nephew, i.e. brother''s son filed a Suit in O.S. No. 65 of 2006 on the file of Sub-Court for partition and separate possession of 9/40th share in the property. Hence, the Defendant/Revision Petitioner herein filed a Petition in REA No. 67 of 2007 to stay the Execution proceeding which was dismissed for default on 19th June 2007. Hence, the Defendant/Revision Petitioner herein is constrained to file an Application in REA No. 153 of 2007 for setting aside the order of dismissal and for restoration of the stay Petition. After contest, the Application in REA No. 153 of 2007 was dismissed, against which, the present Revision Petition has been preferred by the Defendant/Revision Petitioner.

The learned Counsel appearing for the Revision Petitioner would, further submit that since the Defendant/Revision Petitioner was not doing well and he went to the hospital, he was unable to appear before the Court on that day. Hence, the learned Counsel for the Revision Petitioner prayed for setting aside the fair and decretal order passed in REA No. 153 of 2007 and to restore REA No. 67 of 2007 in REP No. 64 of 2005 in O.S. No. 53 of 1999.

The Respondent filed a detailed counter stating that there is no reason for restoring the Petition. Hence, he prayed for dismissal of this Petition.

The learned Counsel for the Revision Petitioner would submit that to put forth his case, it is necessary to set aside the fair and decretal order passed in REA No. 153 of 2007 and to restore the Application in R.E.A. No. 67 of 2007.

At this juncture, the learned Counsel appearing for the Respondent submitted that as per Section 115 of C.P.C., this Revision itself is not maintainable, since the order in favour of the party applying for the Revision in the Court below would have been given finality to Suit or other proceeding. If the answer is affirmative, the Application is maintainable, otherwise, it is not maintainable. If the impugned order is interim in nature or does not finally decide the lis, the Revision will not be maintainable. Hence, he prayed for dismissal of this Revision Petition. To substantiate the same, the learned Counsel relied upon the decision reported in Shiv Shakti Coop. Housing Society, Nagpur Vs. Swaraj Developers and Others, .

I have considered the rival submissions made by both sides and perused the records.

The Respondent herein as the Plaintiff filed a Suit for Specific Performance. After contest, the Suit was decreed on 31.12.2003. Thereafter, the Respondent, as the Decree holder filed REP No. 31 of 2004 for execution of Sale Deed. In pursuance of the decree dated 31.12.2003 passed in O.S. No. 59 of 1999, Sale Deed was executed by the Court on 21.4.2005, then, the Plaintiff/Respondent herein had filed REP No. 64 of 2005 for delivery of possession. The Defendant/Judgment Debtor filed his Counter, contesting the same in Para 5 of his Counter, wherein, it was stated that no partition has been effected and he has not in a possession of property. Hence, he prayed for dismissal of the Petition. But, the Defendant/Judgment-Debtor had filed REA No. 67 of 2007 under Order 21, Rule 26, sub-section (1) of CPC for staying the proceedings till the disposal of O.S. No. 65 of 2006. But, REA No. 67 of 2007 was dismissed foe default on 19.6.2007 for non-appearance of the Judgment-Debtor/Revision Petitioner before the Court.

Now the point has to be decided as to whether the Revision is maintainable? So, it is appropriate to consider Section 115 of CPC, which reads as follows:

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 an it thinks fit:

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) the order, if it had been made in favour of the party applying for Revision, would have finally disposed of the Suit, or other proceeding, or

(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.

(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.

(3) A Revision shall not operate as a stay of Suit or other proceeding before the Court except where such Suit or other proceeding is stayed by the High Court.

It is also appropriate to consider the decision of the Apex Court relied upon by the Respondent''s Counsel reported in Shiv Shakti Coop. Housing Society, Nagpur Vs. Swaraj Developers and Others, , and the relevant Paras 30, 31 & 32 are extracted hereunder:

Sub-section (2) of Section 115 has remained unaltered even after the amendment by the Amendment Act. A new sub-section (3) has been added in Section 115 by the Amendment Act which states that Revision shall not operate as a stay of Suit or other proceeding before the Court except where such Suit or other proceeding is stayed by the High Court.

In Section 2, the expressions "decree" and "order" have been defined in clauses (2) & (14) respectively. It is to be noted that it matters little that, the judgment is styled as an "order". If, in fact, it fulfils the conditions of the definition u/s 2(2), it is a decree and becomes appealable. Orders that are not appealable are, generally speaking, those which are processual i.e. interlocutory or incidental orders regulating proceedings but not deciding any of the matters of controversy in the Suit. Order 43 deals with "Appeals from orders". These Appeals lie u/s 104 of the Code. The said Section deals with Appeals from orders and specifies the orders from which Appeals can lie. Sub-section (2) of Section 104 says that no Appeal shall lie from any order passed in Appeal under the said Section. Section 104 and Order 43, Rule 1 contain a full list of appealable orders. An order which amounts to a decree within Section 2(2) does not fall within Section 104 and the only applicable Section is Section 96. Clauses (a) to (f) of Section 104 were omitted by Arbitration Act, 1940. Section 105 relates to other orders. It inter alia, relates to any order i.e. to appealable as well as non-appealable orders. It is in the nature of a prohibition stipulating that save as otherwise expressly provided, no Appeal shall lie from any order made by a Court in exercise of Original or Appellate jurisdiction; but where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the Memorandum of Appeal. Sub-section (2) deals with case of remand. This Section, in fact, contemplates two things i.e. (1) regular Appeal from decree; and (2) the provision relating to grant of objection relating to interim order. Order 43, Rule 1 is an integral part of Section 104.

A plain reading of Section 115 as it stands makes it clear that the stress is on the question whether the order in favour of the party applying for Revision would have given finality to Suit or other proceeding. If the answer is "yes" then the Revision is maintainable. But on the contrary, if the answer is "no" then the Revision is not maintainable. Therefore, if the impugned order is interim in nature or does not finally decide the lis, the Revision will not be maintainable. The legislative intent is crystal clear. Those orders, which are interim in nature, cannot be the subject-matter of Revision u/s 115. There is marked distinction in the language of Section 97(3) of the Old Amendment Act and Section 32(2)(i) of the Amendment Act. While in the former, there was a clear legislative intent to save Applications admitted or pending before the amendment came into force. Such an intent is significantly absent in Section 32(2)(i). The amendment relates to procedures. No person has a vested right in a course of procedure. He has only the right of proceeding in the manner prescribed. If by a statutory change the mode of procedure is altered, the parties are to proceed according to the altered mode, without exception, unless there is a different stipulation.

As per the dictum of the Apex Court, if the impugned order is interim in nature or does not finally decide the lis, the Revision will not be maintainable.

Now, this Court has to decide as to whether the order passed is interim in nature? So, it is appropriate to incorporate Order 21, Rule 26 of C.P.C., which reads as follows:

When Court may stay execution.--(1) The Court to which a decree has been sent for execution shall, upon sufficient cause being shown, stay the execution of such decree for a reasonable time, to enable the judgment-debtor to apply to the Court by which the decree was passed or to any Court having Appellate jurisdiction in respect of the decree or the execution thereof, for an order to stay execution, or for any other order relating to the decree or execution which might have been made by such Court of first instance or Appellate Court if execution had been issued thereby, or if Application for execution had been made thereto.

(2) Where the property or person, of the judgment-debtor has been seized under an execution, the Court which issued the execution way order the restitution of such property or the discharge of such person pending the result of the Application.

(3) Power to requite security from, or impose conditions upon, Judgment-Debtor - Before making an order to stay execution or for the restitution of property or the discharge of the judgment-debtor, [the Court shall require] such security from, or impose such conditions upon, the judgment-debtor as it thinks fit.

As per the decree, Sale Deed was executed and EP for possession was filed in REP No. 64 of 2005. To drag on the proceeding and to prevent the decree holder from enjoying the fruits of the decree, the Judgment-Debtor/Defendant/Revision Petitioner herein instigated his brother''s children to file the Suit in O.S. No. 65 of 2006 and taking shelter under the guise of Suit filed by his brother''s children, he filed REA No. 67 of 2007 under Order 21, Rule 26, C.P.C. to stay the Execution proceeding till the disposal of O.S. No. 65 of 2006. When the Application in REA No. 67 of 2007 was posted for enquiry, there was no representation for the Applicant, therefore, the Application was dismissed for default for non-prosecution. Therefore, the Judgment-Debtor/Defendant/Revision Petitioner herein filed the Application in REA No. 153 of 2007 to restore the Application in REA No. 67 of 2007, which was dismissed. Aggrieved against the same, the present Revision Petition has been preferred. Considering the said facts, it shows that the impugned order passed in REA No. 153 of 2007 is interim in nature or does not finally decide the lis. So, the Revision Petition is not maintainable.

Considering the facts of the case and also the dictum of the Apex Court, the impugned order, which is interim in nature cannot be a subject matter of Revision u/s 115 of CPC. So, I am of the view that the Application in REA No. 153 of 2007 to restore REA No. 67 of 2007, which is to stay the Execution proceeding, is only interim in nature. Since it is only interim in nature, the Revision Petition will not be maintainable. Further, it is pertinent to note that it is mala fide intention of the Judgment-Debtor/Defendant/Revision Petitioner to prevent the Plaintiff/Decree Holder/Respondent herein from enjoying the fruits of the decree. Hence, this Revision is liable to be dismissed as devoid of merits. Accordingly, this Civil Revision Petition is dismissed. No costs.