G RAMA SUBBAYYA Vs. G RAJAMMA

JUDGEMENT

(1.) (for himself and for K. BHASKARAN C.J.) :- The short question of significant practical importance that arises in this civil revision petition is whether an order determining any question within Sec. 47 C.P.C. passed after amendment of definition of 'decree', in proceedings pending on the date of commencement of the Amendment Act, is appealable or revisable. A Division Bench of this court noticing difference of opinion in the decisions of Division Benches in Challa Ramamurthy v. P. Adinarayana Sons, (1984) 1 Andh WR 134 and Gopu Peddi Reddy v. Gopu Thirupathy Reddy, (1981) 2 Andh WR 276 referred this civil revision petition to the Full Bench, which is now before us.

(2.) The facts giving rise to this revision lie in a narrow compass and may be stated thus : The revision petitioner is the husband. He suffered a decree dated 18-2-1972 in O.S. No. 191/71 on the file of the Additional Subordinate Judge, Guntur, filed by his wife (the respondent) for recovery of her maintenance. On 22-9-1975 the petitioner filed EA No. 816/75 under Order XXI Rule 2 C.P.C. alleging that pursuant to a settlement between the parties, he paid an amount of Rs. 6,500/- under Ex. A-1 in full and final satisfaction of the maintenance decree and prayed to record the satisfaction. The executing court after elaborate enquiry held that no credence could be given to Ex. A-1 and dismissed the petition on August 20, 1979. The petitioner carried the matter in appeal to the District Court, Guntur. The learned District Judge, following the decision of this Court in R. Ramana v. G. Demudu, (1979) 2 APLJ (HC) 250 by his order dated November 3, 1979, returned the appeal for presentation to the Court of competent jurisdiction. The order of the executing court in the said EA dated August 20, 1979, was then assailed in this revision petition.

(3.) Under the scheme of the Code of Civil Procedure (for short 'C.P.C.'), in so far as it relates to providing remedy of appeal, every decree defined in Sec. 2(2) passed by, any court exercising original jurisdiction is appealable under Sec. 96 read with Order XLI Rule-1 except (i) the decree passed with the consent of parties and (ii) the decree passed in any suit of the nature cognizable by courts of Small Causes of valuation not exceeding three thousand rupees otherwise than on a question of law; but every order defined in Sec. 2(4) is not appealable except the orders specified in Sec. 104 read with Order XLIII Rule 1, against which a miscellaneous appeal is provided. Sec. 100 C.P.C. provides a second appeal against the appellate decree if the High Court is satisfied that the case involves a substantial question of law except against the decree passed in an appeal filed under Sub-Section (4) of Sec. 96 C.P.C.; but no second appeal lies from any order passed in a miscellaneous appeal filed under Sec. 104 C.P.C. Against a non-appealable order or decree in a case decided by a Court, a revision lies to the High Court under Sec. 115 C.P.C. provided the Court is subordinate to it and if such subordinate court appears to have exercised jurisdiction not vested in it by law or to have failed to exercise a jurisdiction so vested or to have acted in the exercise of its jurisdiction illegally or with material irregularity. The Code of Civil Procedure (Amendment) Act 104 of 1976 (for short the 'Amendment Act') imposed further conditions, namely, 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 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 or, if allowed to stand would occasion a failure of justice or cause irreparable injury to the party against whom it was made.