Miryalaguda Municipality v. Commissioner, Miryalaguda Yechuri Krishna Murthy
2006-01-28
P.S.NARAYANA
body2006
DigiLaw.ai
( 1 ) THE Miryalaguda Municipality, represented by its Commissioner, miryalaguda, aggrieved by the docket order dated 19-7-2004 in o. S (SR ). No. 1651/2004 on the file of Junior Civil Judge, Miryalaguda had preferred this Civil Revision Petition under Article 227 of the Constitution of india. ( 2 ) THE defendant in the suit is the respondent in this Revision. The revision petitioner/plaintiff filed the suit for cancellation of decree passed in O. S. No. 7/93 on the file of Senior Civil Judge, Miryalaguda. The stand taken by the Revision petitioner/plaintiff is that by virtue of Section 16 (3) of A. P. Civil Courts Act 1972, in view of the enhancement of pecuniary jurisdiction, despite the fact that the decree was made by the Senior Civil Judge, miryalaguda, being the Court of the lowest grade competent to try the suit the suit for cancellation of the said decree shall be instituted before the Junior civil Judge, Miryalaguda in the light of Section 15 of the Code of Civil procedure, in short hereinafter referred to as "code". ( 3 ) AS can be seen from the impugned order, the plaint was returned taking an objection that a Junior Civil Judge cannot entertain a suit for cancellation of a decree made by a Senior Civil Judge and the said order was made returning the plaint. Order XLIII of the Code deals with Appeals from orders. Order XLIII Rule 1 (a) of the Code specifies that an appeal shall lie from the orders under the provisions of Section 104 of the Code, namely, an order under Rule 10 of Order VII of the Code returning a plaint, to be presented to the proper Court except where the procedure specified in Rule 10-A of Order vii of the Code has been followed. As can be seen from the impugned order, the further procedure to be followed under Order VII Rule 10-A of the Code had not been mentioned and evidently the learned Judge made the order only under Order vii Rule 10 of the Code and hence Order VII Rule 10-A of the Code is not attracted at all.
As can be seen from the impugned order, the further procedure to be followed under Order VII Rule 10-A of the Code had not been mentioned and evidently the learned Judge made the order only under Order vii Rule 10 of the Code and hence Order VII Rule 10-A of the Code is not attracted at all. Hence, viewed from any angle, when the remedy by way of appeal is specifically provided for by Order XLIII Rule 1 of the Code, this court is of the considered opinion that the Revision petitioner/plaintiff cannot maintain this Civil Revision Petition under Article 227 of the Constitution of india. ( 4 ) HENCE, the Registry is directed to return the papers to the Counsel representing the Revision petitioner/plaintiff so as to enable him to present the Appeal before the proper Court within a period of four weeks from today, if he chooses to do so. The Civil Revision Petition is accordingly disposed of. No costs.