RAMESHWAR NATH SINHA Vs. NARSINGH SAHAI

JUDGEMENT

(1.) This appeal, as stated in the memoranduym of appeal, has been filed against an order substituting the respondent No. 1/1 as a assignee/legal representative under Order 22, Rule 10 of the Code of Civil Procedure in civil revision No. 258 of 1998. A question has arisen about the maintainability of the appeal.

(2.) Shri Shyam Narain, learned counsel for the appellant contends that Order 43, Rule 1(1) provides for an appeal against an order under Rule 10 of Order 22 giving or refusing to give leave. His submission is that whether an order under Rule 10 of Order 22 is passed in a suit at the trial stage or whether it is in a pending appeal or revision, it would be appealable under Order 43, Rule 1(1). The basis of his contention is that there are no words in O. 43, R. 1(1) limiting its application only to a suit and as such on the plain language of the provision, the appeal is maintainable. In the present case, according to him, an order has been passed on an application under O. 22, Rule 10, CPC in a revision in an execution proceeding as such the appeal is maintainable. It is pointed out by him that the language employed in Order 43 Rule 1(k) is in contrast to the provisions of Order 43, Rule 1(1) in that while in clause (k) the appeal lies against an order refusing to set aside abatement or dismissal of the suit there are no such words of limitation in clause (1) limiting the provision to a suit.

(3.) The submission though appears to be attractive at first glance has no force. Order 43, Rule 1 provides for an appeal from certain orders under the provisions of S. 104, CPC. Thus appeals under Order 43, Rule 1 are appeals under the provisions of S. 104 of CPC. Section 104(2) creates a bar against filing an appeal against an order passed in appeal under that Section. In other words if an order under 22, Rule 10, CPC is passed in an appeal under the provisions of S. 104 no further appeal against that order would lie in view of the bar created under S. 104(2) of CPC. There is no such bar created specifically in the CPC in respect of such an order passed in a revision. However a revision is a part of the ordinary appellate jurisdiction of the Court. Both of appeals as well as revisions are creatures of the statute and they are maintained before a superior Court against an order passed by a subordinate Court. In the case Shankar Ramchandra Abyankar v. Krishnaji Dattatreya Bapat reported in AIR 1970 SC 1 it was held by the Honble Supreme Court that the revisional jurisdiction is a part of the general appellate jurisdiction of a Court. It is inconceivable that while the lagislature precluded an appeal from an appellate order it permitted an appeal from an order passed in revision.