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2001 DIGILAW 584 (ALL)

RAMESHWAR NATH SINHA v. NARSINGH SAHAI

2001-05-25

JANARDAN SAHAI

body2001
JANARDAN SAHAI, J. ( 1 ) THIS appeal, as stated in the memoranduym of appeal, has been filed against an order substituting the respondent No. 1/1 as a assignee/legal representative under Order 22, 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 43, Rule 1 (1) provides for an appeal against an order under Rule 10 of Order 22 giving or refusing to give leave. His submission is that whether an order under Rule 10 of Order 22 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 43, Rule 1 (1 ). The basis of his contention is that there are no words in O. 43, R. 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 O. 22, Rule 10, CPC 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 43 Rule 1 (k) is in contrast to the provisions of Order 43, Rule 1 (1) 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 (1) limiting the provision to a suit. ( 3 ) THE submission though appears to be attractive at first glance has no force. Order 43, Rule 1 provides for an appeal from certain orders under the provisions of S. 104, CPC. Thus appeals under Order 43, Rule 1 are appeals under the provisions of S. 104 of CPC. 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 22, Rule 10, CPC is passed in an appeal under the provisions of S. 104 no further appeal against that order would lie in view of the bar created under S. 104 (2) of CPC. In other words if an order under 22, Rule 10, CPC is passed in an appeal under the provisions of S. 104 no further appeal against that order would lie in view of the bar created under S. 104 (2) of CPC. There is no such bar created specifically in the CPC 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 of 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 Shankar Ramchandra Abyankar v. Krishnaji Dattatreya Bapat reported in AIR 1970 SC 1 it was held by the Honble Supreme Court that the revisional jurisdiction is a part of the general appellate jurisdiction of a Court. It is inconceivable that while the lagislature precluded 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 reported in AIR 1972 All 504 has taken a view that the provisions of Order 22 are not applicable to revision. Similar was the view taken in the decision reported in 1989 All LJ 795. Applications for substituting a party would therefore be maintainable in the case of a revision under the provisions of S. 151 CPC. The effect of this legal position would that appeals under Order 43, Rule 1 (1) can logically be filed only if an order under Rule 10 of Order 22 is passed in a suit pending trial. No such appeal would lie against an order under Rule 10 of Order 22 in a pending appeal on account of the bar created under S. 104 (2) of CPC. Thus the provisions of Order 43, Rule 1 (1) have to be read as being applicable only to an order under Rule 10 of Order 22 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 reported in AIR 1979 Alld. ( 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 reported in AIR 1979 Alld. 218 : (1979 All LJ 685 ). 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 interlucutory order disposing of an application under Order 22. Rule 10 of CPC in a revision. ( 6 ) IN the case reported in AIR 1974 Gujarat 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 took 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. Appeal dismissed. .