JAYARAMA GOUNDER Vs. JAGADESAN

JUDGEMENT

(1.) 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 28. 10. 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 28. 10. 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 28. 10. 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. 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. ,