RAMESHAWAR NATH SINHA Vs. RAJENDRA PRASAD DWIVEDI

JUDGEMENT

(1.) This appeal, as stated in the memorandum of appeal, has been filed against an order substituting the respondent No. 1/1 as a assignee/legal representative under Order XXII, 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 XLIII, Rule 1 (1) provides for an appeal against an order under Rule 10 of Order XXII giving or refusing to give leave. His submission is that whether an order under Rule 10 of Order XXII 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 XLIII, Rule 1 (1). The basis of his contention is that there are no words in Order XLIII, Rule 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 Order XXII, Rule 10, C.P.C. 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 XLIII, Rule 1 (k) is in contrast to the provisions of Order XLIII. Rule 1 (l) 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 (l) limiting the provision to a suit.

(3.) The submission, though appears to be attractive at first glance, has no force. Order XLIII, Rule 1 provides for an appeal from certain orders under the provisions of Section 104, C.P.C. Thus, appeals under Order XLIII, Rule 1 are appeals under the provisions of Section 104 of C.P.C. 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 Order XXII, Rule 10, C.P.C. is passed in an appeal under the provisions of Section 104, no further appeal against that order would lie in view of the bar created under Section 104 (2) of C.P.C. There is no such bar created specifically in the C.P.C. 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 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 of Shankar Ranchandra Abyankar v. Krishnaji Dattatreya Bapat, 1970 SC 1, it was held by the Hon'ble Supreme Court that the revisional jurisdiction is a part of the general appellate ju- risdiction of a Court. It is inconceivable that while the Legislature pre-eluded an appeal from an appellate order, it permitted an appeal from an order passed in revision.