RADHEY SHYAM Vs. RAM NIRANJAN AND ANR.

JUDGEMENT

(1.) This revision petition under Sec. 115 of the Code of Civil Procedure is directed against the judgment order dated 20.9.1976 passed by I Additional District Judge, Sultanpur, in Civil Revision No. 71 of 1976 allowing the judgment debtor's revision application under Sec. 115 of the Code of Civil Procedure from the order dated 28.7.1976 passed by Civil Judge Sultanpur in Misc. Appeal No. 58 of 1976, arising out of judgment and order dated 22.5.1976 passed by Shri S.C. Tewari, learned Munsif, Sultanpur, rejecting the application for temporary injunction under Order 39 of the Code of Civil Procedure, which has been moved in Regular Suit No. 143 of 1976 Ram Niranjan Vs. Radhey Shyam and another. The facts of the case in brief are that Raja Ram, Salig Ram and Satya Narain were grand sons of Matadin. Ram Niranjan, the plaintiff-opposite party was the grand son of Salig Ram and Radhey Shyam has been the daughter's son of Satya Narain. The house mentioned in the village register at serial No. 20 is.stated to have been gifted by Satya Narain to Radhey Shyam. Radhey Shyam, the revisionist had filed suit No. 43 of 1963 in the Court of Munsif North for a decree for possession over house No. 20 and Radhey Shyam alleged that Ram Khelawan, father of Ram Niranjan i.e. present opposite-party No. 1 was a trespasser. The suit was contested by the defendants of that suit claiming title in respect of that and they claimed that house to their own. The suit was decided and decreed in favour of Radhey Shyam with respect to the property which was defined by boundaries and number Radhey Shyam moved an application for execution of the decree and the present opposite-parties preferred objection and the objections were rejected and thereafter the present opposite party Ram Niranjan filed a suit for the grant of decree for injunction i.e. Suit No. 143 of 1976 in the Court of Munsif North, Sultanpur Ram Niranjan Vs. Radhey Shyam and Ram Khelawan. The case of opposite-party has been that the decree in Suit No. 43 of 1963 did not relate as per boundaries. Given in the case to House No. 20 but it relates to House No. 8 Ahata No. 10. While filing the suit Ram Niranjan moved an application for temporary injunction and prayed for injunction restraining the present revisionist Radhey Shyam from taking possession over the house involved in Suit No. 143 of 1976 i.e. House No. 20 in pursuance of the execution of the decree passed in Suit No. 43 of 1963. The trial Court rejected the application for temporary injunction by judgment and order dated 22.5.1976 and Ram Niranjan, the present opposite-party filed an appeal against the above mentioned order of the trial Court and the said appeal was numbered as Appeal No. 58 of 1976. The learned Civil Judge dismissed the appeal subject to observation made in the body of the judgment which read as under:-

(2.) Feeling aggrieved from this appellate order plaintiff Ram Niranjan preferred Civil Revision No. 71 of 1976 and the learned I Additional District Judge, Sultanpur, allowed the revision of the plaintiff-opposite party. Learned I Additional District Judge while allowing the revision directed that decree-holder Radhcy Shyam is restrained from taking possession over the property through execution of decree, passed in Suit No. 43 of 1976 Radhey Shyam Vs. Ram Kehelawan of the Court Munsif North, Sultanpur, dated 13.7.1964 with respect to the property identified by boundaries in the said decree with the condition that plaintiff shall regularly deposit a sum of Rs. 1,500.00 each month with the trial court to be disbursed in accordance with the directions given in die body of the judgment. The decree holder shall not take possession over House No. 8 lying at Ahata Nos. 8 and 10 though he shall be at liberty to take possession over House No. 20 if he can identify the property by any other means i.e. other than boundaries. Feeling aggrieved from this judgment and order of the learned Additional District Judge, Radhey Shyam, the present revisionist-applicant has filed the revision under Sec. 115 of the Code of Civil Procedure.

(3.) I have heard Shri Akhilesh Kalra, holding brief for Shri Pradeep Kant, learned counsel for the revisionist. Shri Kalra contends that this order of the learned Additional District Judge is illegal and without jurisdiction. Learned counsel submitted that learned Additional District Judge had no jurisdiction to entertain the revision application against the order of Civil Judge passed in exercise of Civil appellate jurisdiction and that the order that had been passed by the learned Civil Judge had not been passed in exercise of original jurisdiction or in a original suit or, proceeding, the valuation of which could be said to be rupees twenty thousand and more, as such, he submitted that the order of the learned Additional District Judge interfering with the order of the Civil Judge has been without jurisdiction. When Shri Kalra has concluded his arguments on behalf of revisionist Shri M.R. Misra, learned counsel for the opposite parties, submitted that on the very same premises or principles which had been pro-pounded by the learned counsel for the revisionist, the present revision application filed by Radhey Shyam the decree holder, is not maintainable as well, as no revision is maintainable against the order of the District Court which the District Court has passed in exercise of its appellate or revisional jurisdiction. This revision petition was filed on 13.12.1976. Under Sec. 115 of the Code of Civil Procedure as originally it stood prior to U.P. Amendments made therein the revisional power had been conferred on the High Court subject to the conditions that the order impugned amounted to a ease decided and that no appeal from that order did lie to this Court and further that the order impugned did suffer from jurisdictional errors. By Civil Laws Amendment Act No. 14 of 70 the revisional jurisdiction was conferred on the District Court concurrently with the High Court subject to what was contained in the proviso. The proviso read as under :