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2001 DIGILAW 572 (ALL)

RAMESHAWAR NATH SINHA v. RAJENDRA PRASAD DWIVEDI

2001-05-25

JANARDAN SAHAI

body2001
JANARDAN SAHAI, J. ( 1 ) THIS appeal, as stated in the memorandum of appeal, has been filed against an order substituting the respondent No. 1/1 as a assignee/legal representative under Order XXII, Rule 10 of the Code of Civil Procedure in Civil Revision No. 258 of 1998. A question has arisen about the maintainability of the appeal. ( 2 ) SHRI Shyam Narain, learned counsel for the appellant contends that Order XLIII, Rule 1 (1)provides for an appeal against an order under Rule 10 of Order XXII giving or refusing to give leave. His submission is that whether an order under Rule 10 of Order XXII is passed in a suit at the trial stage or whether it is in a pending appeal or revision, it would be appealable under Order xliii, Rule 1 (1 ). The basis of his contention is that there are no words in Order XLIII, Rule 1 (1) limiting its application only to a suit and as such, on the plain language of the provision, the appeal is maintainable. In the present case, according to him, an order has been passed on an application under Order XXII, Rule 10, C. P. C. in a revision in an execution proceeding as such the appeal is maintainable. It is pointed out by him that the language employed in Order XLIII, rule 1 (k) is in contrast to the provisions of Order XLIII. Rule 1 (l) in that while in clause (k) the appeal lies against an order refusing to set aside abatement or dismissal of the suit, there are no such words of limitation in clause (l) limiting the provision to a suit. ( 3 ) THE submission, though appears to be attractive at first glance, has no force. Order XLIII, rule 1 provides for an appeal from certain orders under the provisions of Section 104, C. P. C. Thus, appeals under Order XLIII, Rule 1 are appeals under the provisions of Section 104 of c. P. C. Section 104 (2) creates a bar against filing an appeal against an order passed in appeal under that Section. Order XLIII, rule 1 provides for an appeal from certain orders under the provisions of Section 104, C. P. C. Thus, appeals under Order XLIII, Rule 1 are appeals under the provisions of Section 104 of c. P. C. Section 104 (2) creates a bar against filing an appeal against an order passed in appeal under that Section. In other words, if an order under Order XXII, Rule 10, C. P. C. is passed in an appeal under the provisions of Section 104, no further appeal against that order would lie in view of the bar created under Section 104 (2) of C. P. C. There is no such bar created specifically in the c. P. C. in respect of such an order passed in a revision. However, a revision is a part of the ordinary appellate Jurisdiction of the Court. Both appeals as well as revisions are creatures of the statute and they are maintained before a superior Court against an order passed by a subordinate court. In the case of Shankar Ranchandra Abyankar v. Krishnaji Dattatreya Bapat, 1970 SC 1, it was held by the Honble Supreme Court that the revisional jurisdiction is a part of the general appellate ju- risdiction of a Court. It is inconceivable that while the Legislature pre-eluded an appeal from an appellate order, it permitted an appeal from an order passed in revision. ( 4 ) THERE is a second aspect of the matter. A Full Bench of this Court in Chandra Deo Pandey v. Sukdeo Rai and others. 1972 All 504, has taken a view that the provisions of Order XXII are not applicable to a revision. Similar was the view taken in the decision in 1989 ALJ 795. Applications for substituting a party would, therefore, be maintainable in the case of a revision under the provisions of Section 151. C. P. C. The effect of this legal position would be that appeals under Order XLIII, Rule 1 (l) can logically be filed only if an order under Rule 10 of order XXII is passed in a suit pending trial. C. P. C. The effect of this legal position would be that appeals under Order XLIII, Rule 1 (l) can logically be filed only if an order under Rule 10 of order XXII is passed in a suit pending trial. No such appeal would He against an order under rule 10 of Order XXII in a pending appeal on account of the bar created under Section 104 (2)of C. P. C. Thus, the provisions of Order XLIII, Rule 1 (l) have to be read as being applicable only to an order under Rule 10 of Order XXII passed in a suit at the trial stage. ( 5 ) THERE is a third aspect of the matter. Against a final order passed in a revision, no appeal lies. Even a revision would not lie in view of the decision, of the Full Bench of this Court in 1979 All 218. As such, it Is not conceivable that even though an appeal does not lie against the final order in the revision, an appeal would lie against an interlocutory order disposing of an application under Order XXII. Rule 10 of C. P. C, in a revision. ( 6 ) IN the case in 1974 Guj 152, the Gujarat High Court while considering the maintainability of an appeal against an order refusing to set aside the abatement passed in an appeal look the view that no appeal is provided for against a final decree so it was not conceivable that an appeal was provided for against an order passed in an appeal refusing to set aside the abatement. ( 7 ) THE present appeal, therefore, is not maintainable and is accordingly dismissed. .