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2007 DIGILAW 1488 (PAT)

Shiv Chandra Mishra v. State Of Bihar

2007-09-11

NAVANITI PRASAD SINGH

body2007
Judgment 1. Office report is that the civil revision application against refusal to grant temporary injunction under Or. 39, R. 2A would not lie to this Court, as against an order granting or refusing to grant injunction an appeal is provided in terms of Or. 43, R. 1(r) of the Code of Civil Procedure and the said miscellaneous appeal would lie to the District Judge or this Court, subject to valuation. 2. Learned counsel for the petitioner submits that in view of Sec. 115(1) of the Code of Civil Procedure and the Judgment of the Apex Court in the ease of Smt. Vidya Vati V/s. Shri Devi Das since, AIR 1977 SC 397 the revision is maintainable in this Court because considering the valuation no appeal would lie to this Court. In other words, it is submitted that though an appeal lie to the District Judge, no appeal lie to this Court and that being so in terms of Sec. 115(1) of the Code of Civil Procedure, revision is maintainable, 3. 1 am afraid the lawyer is not correct. 4. The judgment of the Apex Court was rendered on 25.11.1976 (reported in, AIR 1977 SC 397 ) examining the validity of the High Court order dismissing the civil Court revision on 28.04.1975. The law, as then stood was as laid down by the Apex Court but since then there has been a material change whereby sub-sec. (2) was inserted to Sec. 115 of the Code of Civil Procedure by Amendment Act 104 of 1976 with effect from 1.02.1977. The said sub-section now clearly provided that under revisional jurisdiction the High Court shall not vary or reverse any decree or order against which an appeal lay either to the High Court or to any Court subordinate thereto. Thus even if a miscellaneous appeal is available to the District Judge against an order, the revision to the High Court would not lie. 5. The law having materially been altered, the judgment of the Apex Court has no application. It is thus held that the revision application is not maintainable and the petitioner, if so advised, may prefer miscellaneous appeal before the District Judge. 6. This revision application is not maintainable and is dismissed accordingly.