KANARAN NAIR Vs. MADHAVAN NAIR

JUDGEMENT

(1.) In a suit for recovery of possession of a plot of land the plaintiff took out a commission to measure the disputed land. Commissioner filed report arid plan, but defendant in the suit sought to have them set aside. Trial Court remitted the commission report to the same commissioner for rectifying the errors pointed out and to draw up a plan with the assistance of the Taluk Surveyor. Commissioner prepared a fresh report and got a new plan drawn up and filed them in court. Now it was the plaintiff who filed objections against the report and plan and that both may be set aside. Learned Munsiff declined to do so as per the order challenged in this revision.

(2.) Initially it was thought that revision is not maintainable as the impugned order was not "a case which has been decided by any court" as envisaged in S.115(1) of the Code of Civil Procedure (for short "the code'). Such a view has been expressed by Guttal, J. in Mytheen Kunju v. Azeez Kunju ( 1992 (1) KLT 713 ). The same learned Judge reiterated the position in 1992 (2) KLT 102 . John Mathew, J. before whom the present C. R. P. came up expressed the opinion that the said view requires reconsideration by a larger bench. Accordingly this case has been referred to a Division Bench.

(3.) We need not vex our mind on the question whether the impugned order would fall within the ambit of "any case which has been decided by any court" as envisaged in S.115(1) of the Code because another Division Bench of this court has held In Mathew v. Saramma ( 1995 (1) KLT 61 ) that any order failing to exercise jurisdiction vested in the court or exercising a jurisdiction not vested in it could as well be "a case decided" falling within the ambit of the Section.