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Madhya Pradesh High Court · body

2005 DIGILAW 1060 (MP)

Kripashankar Mudgal v. Lalit Mohan

2005-10-13

A.M.NAIK

body2005
JUDGMENT The defendant/petitioner has preferred the present revision application stating that it is against the findings given by the Court of A.D.J., Sheopurkalan in paragraph-26 of the impugned judgment and decree passed in Civil Suit No. 9-A/99. Shri Vijaywargiya, learned counsel for the respondent No.1 raised a preliminary objection that the revision petition is not maintainable since the same is in fact against the decree and an appeal is provided for under section 96 of Code of Civil Procedure. Shri Niwaskar, learned counsel for the revisionist submitted that the revisionist is not aggrieved by the judgment and decree, but is aggrieved merely by the findings contained in paragraph-26 of the impugned judgment. He submitted that an appeal is not provided against merely a finding and therefore, the defendant/revisionist has rightly preferred the present civil revision. Learned counsel for this purpose relied on the authorities reported as AIR 1974 SC 1126 , 1977 JLJ 245 , 2002(6) SCC 1 and 2003 (9) SCC 606 . The law propounded by the aforesaid judicial authorities is not in dispute at all. The question in the present case is whether the revisionist is aggrieved merely by the findings or by the judgment and decree itself. Learned counsel for the revisionist drew attention of this Court to paragraph-26 of the impugned judgment which is reproduced below for clarity of the case. The question in the present case is whether the revisionist is aggrieved merely by the findings or by the judgment and decree itself. Learned counsel for the revisionist drew attention of this Court to paragraph-26 of the impugned judgment which is reproduced below for clarity of the case. ÞmDr foospuk ds vk/kkj ij esa bl fu'd'kZ ij igqaprk gwa fd oknh mldk okn izekf.kr djus esa vlQy jgk gSA oknh izfroknh Øekad 2 ds fo#) dksbZ Hkh lgk;rk izkIr dj ikus dk vf/kdkjh gS ;g izekf.kr djus esa vlQy jgk gSA vr,o oknh izfroknh Øekad 2 ls Ms< foLok tehu dk foØ; i= fu'ikfnr djk;s tkus dk vf/kdkjh ugha gS vkSj u gh bl laca/k esa oknh dksbZ lgk;rk izkIr dj ldrk gSA ysfdu oknh dh vksj ls izLrqr foØ; i= izn"kZ ih&1 vkSj ih&2 esa layXu uD"ks es fofØr IykV ds chp es tks rhl QqV pkSM+k jkLrk iwoZ ls if"pe vkSj 10 QqV pkSM+h xyh mÙkj ls nf{k.k dh vksj nf"kZr dh x;k gS ;g nksuksa LFkku blh :i esa jgsaxsA buds foØ; djus dh vf/kdkfjrk izfroknh Øekad 2 dks ugha gksxh vkSj u gh bldk foØ; djus dh vf/kdkfjrk ;k blesa ifjorZu djus dh vf/kdkfjrk oknhi{k dks gksxhA D;ksafd foØ; i= ls nksuksa gh i{k ikcan gs vksj bldk mi;ksx bl IykaV ls lacaf/kr Lokeh dks djus dk jgsxk ysfdu mudk dksbZ LoRo ;k LFkk;h fuekZ.k djus dh vf/kdkfjrk ugha gksxhAß The decree is also reproduced below for showing the similarity:- It is ordered and decreed that Þoknh mldk okn izekf.kr djus esa vlQy jgk gSA oknh izfroknh Øekad 2 ds fo#) dksbZ Hkh lgk;rk izkIr dj ikus dk vf/kdkjh gS ;g izekf.kr djus esa vlQy jgk gSA vr,o okn izfroknh Øekad 2 ls Ms< foLok tehu dk foØ; i= fu'ikfnr djk;s tkus dk vf/kdkjh ugha gS vkSj ugha bl laca/k esa oknh dksbZ lgk;rk izkIr dj ldrk gSA ysfdu oknh dh vksj ls izLrqr foØ; i= izn"kZ ih&1 vkSj ih^&2 eas layXu uD"ks eas foØhr IykV ds chp esa tks rhl QqV pkSM+k jkLrk iwoZ ls if"pe vkSj 10 QqV pkSM+h xyh mÙkj ls nf{k.k dh vksj dh x;h gS ;g nksuksa LFkku blh :i esa jgsaxsA buds foØ; djus dh vf/kdkfjrk izfroknh Øekad 2 dks ugha gksxh vkSj u gh bldk foØ; djus dh vf/kdkfjrk ;k blesa ifjorZu djus dh vf/kdkfjrk oknhi{k dks gksxhA D;ksafd foØ; i= ls nksuksa gh i{k ikcan gs vksj bldk mi;ksx bl IykaV ls lacaf/kr Lokeh dks djus dk jgsxk ysfdu mudk dksbZ LoRo ;k LFkk;h fuekZ.k djus dh vf/kdkfjrk ugha gksxhAßß On perusal, it is found that paragraph 26 of the impugned judgment does not contain merely a finding, but is virtually the operative portion in part of the judgment which is embodied in the decree itself. The decree has been defined in section 2 (2) of Code of Civil Procedure as under:- "decree means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the pm1ies with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include -- (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. No revisionist can be permitted to challenge a decree under the garb of a challenge to a finding. Paragraph 26 of the impugned judgment amounts to expression of an adjudication and cannot be termed merely as a finding. The revision memo contains a prayer that the findings given by the learned trial Court in paragraph 26 vide impugned judgment and decree dated 9.11.2001 may be set aside. Thus, the revisionist under the garb of challenge in this revision application is virtually challenging the impugned judgment and decree itself. If paragraph 26 of the impugned judgment is disturbed, the decree passed by the learned trial Judge will also get disturbed. This is not permissible except in a regular civil appeal under section 96 of Code of Civil Procedure. Thus, the revision application is misconceived and the same is dismissed as not maintainable. Learned counsel for the appellant while making submissions made an alternative prayer for conversion of the civil revision into first appeal. It may be seen that the suit of the plaintiff/respondent No. 1 has been dismissed by the impugned judgment and decree. The defendant/revisionist had not preferred any counter claim. In this view of the matter, the defendant/revisionist cannot be said to be a person aggrieved by the impugned judgment and decree. So, in case if he wants to prefer an appeal he may be required to obtain a leave from this Court to prefer an appeal. No such application for seeking leave is on record before this Court. There being no such application on record, the prayer for conversion cannot be entertained and the revisionist cannot be permitted to convert his revision application into first appeal without first seeking the leave. No such application for seeking leave is on record before this Court. There being no such application on record, the prayer for conversion cannot be entertained and the revisionist cannot be permitted to convert his revision application into first appeal without first seeking the leave. However, it will be open for the revisionist to prefer regular civil appeal under section 96 of the Code of Civil Procedure after seeking the necessary leave, if advised, in accordance with law. No order as to costs. Certified copy of the impugned judgment and decree be returned to the counsel for the revisionist on retaining attested true copy of the same on record.