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2007 DIGILAW 3739 (MAD)

Jayarama Gounder v. Jagadesan

2007-11-22

M.VENUGOPAL

body2007
Judgment :- The Civil Revision Petitioner herein is the respondent in the Civil Miscellaneous Appeal in C.M.A.No.28 of 2002 and the respondent in E.A.No.33 of 1994 in O.S.No.517 of 1986 on the file of the District Munsif, Dindivanam. The respondent/appellant filed E.A.No.33 of 1994 before the District Munsif Court, Dindivanam, praying to implead him as the second plaintiff of deceased/1st plaintiff, Doraisamy Reddiar and to permit him to continue the further proceedings, under section 50 of the Code of Civil Procedure. In the said application, counter was filed on behalf of the revision petitioner/respondent. After hearing the learned District Munsif, by virtue of his order dated 210. 1999 has dismissed the application on the ground that Doraisamy has other son and daughters who are his heirs till the Will is proved and came to the ultimate conclusion that the petition is not liable to be allowed and accordingly, dismissed the same with costs. Civil Miscellaneous Appeal in C.M.A.No.28 of 2002 was filed by the respondent in Civil Revision Petition before the learned Additional District Judge-cum-Fast Track Court No.1, Dindivanam as appellant and the Civil Miscellaneous Appeal in C.M.A.No.28 of 2002 was allowed on 20.11.2002 and that the E.A.No.33 of 1994 filed for impleading him as the second plaintiff by the appellant was dismissed. As against the order passed in C.M.A.No.28 of 2002 on the file of the learned Additional District Judge-cum-Fast Track Court No.1, Dindivanam, the plaintiff/revision petitioner/respondent in the appeal has preferred this Civil Revision Petition. 2. According to learned counsel for the revision petitioner the C.M.A.No.28 of 2002 is legally not maintainable in the eye of law and that the appeal is incompetent. As against the orders passed in E.A.No.517/1986 dated 210. 1999, only revision lies and this legal position was overlooked by the learned Additional District Judge-cum-Fast Track Court No.1, Dindivanam. It is the further submission of the learned counsel for the revision petitioner that the order passed in E.A.No.33 of 1994 dated 210. 1999 is only a revisable order and therefore, C.M.A.No.28 of 2002 on the file of the learned Additional District Judge-cum-Fast Track Court No.1, Dindivanam is not maintainable in limini. 3. Learned counsel for the revision petitioner submitted that Order 43 speaks of the filing of appeal from orders and once the Trial Court has dismissed the Execution application, then revision alone is maintainable before the High Court. 3. Learned counsel for the revision petitioner submitted that Order 43 speaks of the filing of appeal from orders and once the Trial Court has dismissed the Execution application, then revision alone is maintainable before the High Court. Section 115 of the Code of Civil Procedure enjoins filing of revision before the High Court. It is to be pointed out that for an order to be revisable under section 115 C.P.C., [1]there should be ‘any case which has been decided’ deciding including any order made, or any order deciding an issue in the course of a suit or other proceeding; [2]The decision must be of a Court subordinate to High Court; [3]An appeal should not lie against the decision; and [4]the Subordinate Court must appear [a]to have exercised jurisdiction not vested in it by law, or [b]to have vested to exercise a jurisdiction so vested, or [c]to have acted in the exercise of its jurisdiction illegally or with material irregularity. 4. This court is of the considered opinion that the order passed in E.A.No.33 of 1994 dated 210. 1999 is not appealable perse and therefore, the C.M.A.No.28 of 2002 is not maintainable in the eye of law and the Civil Miscellaneous Appeal ought not to have been numbered and disposed of on merits by the learned Additional District Judge-cum-Fast Track Court No.1, Dindivanam. To put it differently, the order passed in E.A.No.33 of 1994 is not an appealable one but revisable only under section 115 C.P.C. 5. Learned counsel for the respondent in the Civil Revision Petition contended that the plea as to the maintainability of the Civil Miscellaneous Appeal was not raised before the Lower Court by the revision petitioner and therefore, the revision petitioner should not be permitted to raise the same before this Court. In this connection, it is to be pointed that plea as to the maintainability of the Civil Miscellaneous Appeal is a question of law and can be allowed to be raised for the first time in revision too, in the considered opinion of this Court. Alternatively, the learned counsel for the respondent submitted that the Civil Miscellaneous Appeal can be converted as revision by this court. Alternatively, the learned counsel for the respondent submitted that the Civil Miscellaneous Appeal can be converted as revision by this court. It is pertinent to point out that Civil Miscellaneous Appeal was disposed of on 20.11.2002 by the learned Additional District Judge and if it was not disposed of, then the possibility of converting the Civil Miscellaneous Appeal into revision could have been considered. But, in our case, the fact situation is different and therefore, the contention of the learned counsel for the respondent that the Civil Miscellaneous Appeal should be converted into revision is not acceptable. 6. For the foregoing reasons mentioned supra, this Court allows the Civil Revision Petition and holds that the Civil Miscellaneous Appeal is not maintainable in the eye of law, since only revision lies as against the orders passed in E.A.No.33 of 1994 and in that view of the matter, the Civil Revision Petition is allowed and the order passed in CMA.No.28 of 2002 dated 20.11.2002 is set aside and the order passed by the Trial Court in EA.No.33 of 1994 dated 210. 1999 shall stand restored. No costs. However, liberty is given to the respondent herein to agitate his rights within the parameters of law.