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Andhra High Court · body

2006 DIGILAW 225 (AP)

A. Govardhan Reddy v. Ravi Medical Distributors

2006-02-21

N.V.RAMANA

body2006
( 1 ) THIS C. R. P. , which is at the stage of SR, is sought to be filed by the petitioner-defendant against the order dated 15-03-2005 passed by the XI Additional Senior Civil Judge (Fast track Court), City Civil Court Hyderabad, allowing the application, in I. A. No. 191 of 2004 in O. S. No. 639 of 2002, filed by the respondent-plaintiff underorderxii Rule 6 of the Code of Civil Procedure, 1908. ( 2 ) AS by reason of the order passed in the i. A. , the Court below allowed the claim made by the plaintiff in the suit and passed a decree, upon contest by the defendant by way of filing written statement, the Registry took an objection that the C. R. P. under section 115 of the Code of Civil Procedure, 1908 (for short the Code ) is not maintainable, for an appeal remedy is provided against the said order. ( 3 ) THE learned counsel for the petitioner submitted that since the decree passed in the I. A. , amounted to deciding the very suit itself, revision under Section 115 of the Code, is maintainable, and more so when no appeal lies under Section 96 (3) of the Code, and in support of this submission, he placed reliance on the judgment of the apex Court in s. S. Khanna v. F. J. Dillon. Placing reliance on the judgment of Rajasthan High Court in ankit Udyog and others v. Laxman Prasad, he submitted that no appeal lies against a consent decree. He submitted that the petitioner had denied the liability in the written statement and the application filed by the respondent for attachment before judgment was also dismissed. There being no admission made by the petitioner by way of pleading in the written statement, the Court below committed an error in passing the decree in I. A. , resulting in deciding the suit, and in respect of such a decree, a revision is maintainable, he placed reliance on the judgment of this Court in D. Ram Mohan Rao v. M/s. Sridevi Hotels Pvt. Ltd. . ( 4 ) THERE can be no doubt that in respect of "any case which has been decided," the high Court can exercise its power of revision under Section 115 of the Code. ( 4 ) THERE can be no doubt that in respect of "any case which has been decided," the high Court can exercise its power of revision under Section 115 of the Code. But in the instant case, the suit filed by the respondent for recovery of some amounts, was contested by the petitioner by filing written statement. At that point of time, the respondent filed the present application under Order XII Rule 6 of the Code, for judgment on admission, contending that the petitioner admitted the liability in I. P. No. 4 of 2002, filed against m/s. Tulasi Medical Agencies and two others, on the file of the Senior Civil Judge, nandigama, which was dismissed for default on 14-11-2003. The copy of the said application was served on the petitioner. The petitioner in spite of being given sufficient opportunities, did not file counter. In those circumstances, the Court below considering the averments made by the petitioner in i. P. No. 4 of 2002, admitting the liability to the extent of the present application, which are by way of pleadings, allowed the application by reason of the order sought to be impugned. ( 5 ) ADMITTEDLY, the impugned order, is not a consent order. Though the impugned decree, passed in the I. A. , is in the nature of a decree, passed in the suit itself, the same having been passed by a Court ecercising original jurisdiction, an appeal lies against such decree under Section 96 (1) of the Code, and more so when it is not a decree passed by consent of parties, attracting the provisions of Section 96 (3) of the Code, which states that no appeal lies from a decree passed by the Court with the consent of parties. Since the impugned decree is not passed with the consent of the parties, which is admittedly on contest for the petitioner had filed his written statement, certainly an appeal lies under section 96 (1) of the Code. Hence, the contention of the petitioner that since no appeal lies against the decree under section 96 (3) of the Code, the present revision under Section 115 of the Code of Civil procedure 1908, is maintainable, is misconceived. ( 6 ) SINCE revision under Section 115 of the code is not maintainable against the impugned decree, I am not inclined to express any opinion on the merits or otherwise thereof. ( 6 ) SINCE revision under Section 115 of the code is not maintainable against the impugned decree, I am not inclined to express any opinion on the merits or otherwise thereof. ( 7 ) IN the result, the objections taken by the registry are upheld. The C. R. P. , which is at the stage of SR is rejected as not maintainable. No costs.