SANGITA SUNIL BHARDIYA Vs. RAJENDRA BABULAL SARNOT

JUDGEMENT

(1.) Heard.

(2.) Mr. Anturkar appearing for the respondent has raised preliminary objection regarding maintainability of the present revision application. According to him, the trial Court has passed decree in suit under section 6 of the Specific relief Act. Such decree is not amenable to revision under section 115 of the code of Civil Procedure. This submission is pressed on the basis of section 115 of the Civil Procedure Code. Section 115 of the Code as amended reads thus: 115. Revision.- (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears - (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit: [provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceedings, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings. ] [ (2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto. [ (3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceedings is stayed by the High Court. ] explanation - In this section, the expression, "any case which has been decided" includes any order made, or any order deciding an issue, in the course of a suit or other proceeding. ] [a]. According to Mr. Anturkar sub-section (1) employs expression "any case which has been decided", which expression has been explained by the legislature in the explanation following sub-section (3) that it includes any order made, or any order deciding an issue, in the course of a suit or other proceedings. According to Mr. Anturkar, limited meaning will have to be given to this expression to only mean that the order passed in suit or proceedings before the lower Court and not the decree as is passed in the present case. Shri Anturkar then referred to the proviso below sub-section (1) to contend that once again the proviso reiterates the position that the High Court shall not vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding; which would mean that section 115 of the Code has been enacted to govern only the orders passed in the pending proceedings before the trial Court and not apply to final decree to be passed in the suit. Mr. Anturkar also relied on sub-section (2) to contend that it reiterates the position that High Court shall not vary or reverse any decree or order against which appeal lies either to High Court or to Court subordinate thereto. Mr. Anturkar has pressed into service decision of the Supreme Court in the case of Mukesh Tripathi vs. Senior Divisional manager, L/c and ors. reported in (2004) 8 SCC 387 which had occasioned to consider the scope of expression "includes". Mr. Anturkar then relied on the decision in the case of The South Gujarat Roofing Tiles Manufacturers association and anr. vs. The State of Gujarat and anr. reported in (1976) 4 SCC 601 which has considered the expression "includes". It is argued that the explanation to section 115 uses the word includes in the sense of "means". It is submitted that the word "decree" has been defined in the Code in section 2 (2) , which is perceptibly different from word "order". On this basis, it is contended that on reading the provision as a whole, the legislative intent is to limit the remedy of revision only in respect of order passed by the trial Court in the proceedings pending before it.

(3.) Counsel for the applicant however, submits that section 115 of the Code will have to be harmoniously construed. Remedy provided in section 115 is not limited to only the interim order which if set aside will have the effect of finally disposing of the suit or other proceeding, but also decree against which no appeal lies either before the subordinate Court or the High Court. Mr. Karnik placed reliance on the decision reported in (1999) 8 SCC 274 in the case of Mahabir prasad Jain vs. Ganga Singh which arose out of the remedy of revision under section 115 of the Code invoked by the applicant in the suit against decree passed under section 6 of the Specific Relief Act. Reliance is also placed on another decision in the case of Bhojraj Krishnarao and anr. vs. Sheshrao Diwakarrao and ors. reported in AIR (36) 1949 Nagpur 126, which was also revision application filed under section 115 of the Code against a decree passed in the suit under section 9 of the Specific Relief Act; And also in the case of Padartha Amat and anr. vs. Siba Sahu reported in AIR 1993 Orissa 92, which was again revision application entertained by the High Court of Orissa under section 115 of the code against a decree passed in section 6 of the Specific Relief Act. Mr. Karnik has also placed reliance on the decision of the Karnataka High Court, reported in air 1994 Karnataka 350 in the case of Mehboob Pasha vs. A. R. Viswanatha chetty and ors. which specifically dealt with the similar objection about the maintainability of revision against the decree passed in the suit under section 6 of the Specific Relief Act. That objection has been negatived in paragraph 10 of this decision, while relying on the decision reported in AIR 1953 Pepsu 188 and AIR 1965 Madras 122 as well as 1988 (3) Karnataka L. J. 139 in paragraph 12.