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1978 DIGILAW 549 (MP)

Lakshmi Narayan v. Sunderbai

1978-07-12

H.G.MISHRA

body1978
Short Note : 1. The trial Court had imposed costs of Rs. 10/- for amendment sought by the plaintiff. This costs were not paid by the plaintiff to the defendant-non-applicants. Consequently by the impugned order the suit was dismissed. Held : It is apparent from reading the impugned order that the suit has been dismissed by it. It is true that the definition of 'decree' excludes dismissal of suit for default. But the words 'dismissal for default' occurring in section 2(2) of the Code of Civil Procedure 1908 refers only to those cases of dismissal for default with which the Court specifically deals, and does not include dismissal of the suit because amendment costs have not been paid. Therefore it cannot be said to be an order of dismissal for default within the meaning of section 2 (2) (b). 2. The contention of the learned Counsel for the applicant is to the effect that the impugned order is excluded from the preview of the word 'decree' by virtue of clause (b) of the definition of the word 'decree' has no force. The impugned order amounts to decree. I am fortified in this view by the ratio of the case reported in A.I.R. 1943 Nagpur 149. 3. This brings me to the next argument advanced by the learned counsel for the applicant viz. that the revision is competent as no appeal lies against the impugned order to this Court. Reliance is placed in this respect on the dictum of case reported in AIR 1960 Andhra Pradesh 540 (Katam Virupakshiah and others v. Matam Sivalmgalaah and others). 4. Question of interpretation of the words 'in which no appeal lies thereto' cropped up before their Lordships of the Supreme Court in the case reported in AIR 1964 SC 497 0 Major S.S. Khanna (in both the appeals v. Brig. F.J. Dillon) wherein it has been held that :- “If an appeal lies against the adjudication directly to the High Court or to another Court from the decision of which an appeal lies to the High Court it has no power to exercise its revisional jurisdiction, but where the decision itself is not appealable to the High Court directly or indirectly exercise of the revisional jurisdiction by the High Court would not be deemed excluded. AIR 1953 Raj. 137 (FB) and AIR 1953 Raj 90 , Overruled.”. 5. AIR 1953 Raj. 137 (FB) and AIR 1953 Raj 90 , Overruled.”. 5. Since the impugned order amounts to decree and was appealable to District Court, therefore, revision is incompetent. The view of this Court reported in 1961 JLJ, Short Note 107 (Bank of Dewas Ltd. v. Madanlal) is also in line with the aforesaid dictum AIR 1943 Nag. 149=29 MPLC 254; AIR 1964 SC 497 and 1961 JLJ SN 107 relied on. AIR 1960 AP 540 dissented from. Revision dismissed.