ON DEATH OF RABINDRANATH DAS ADHIKARI (SINCE DECEASED), HIS LEGAL HEIRS AND REPRESENTATIVES & ORS Vs. ISWAR KISHORE KISHORI JEW, ISWAR BRAJO KISHORE JEW AND ISWAR GOPINATH JEW THAKUR & ORS

JUDGEMENT

(1.) A point is raised in the batch of the instant revisional applications as to whether an appeal would lie against an order passed by the Court exercising Appellate Jurisdiction for which the remedy of the aggrieved person is provided under Section 104 and Order 43 Rule 1 of the Code of Civil Procedure. Several judgments are cited by the respective parties in support of their respective contentions and invited the Court to decide the said point finally. At the very outset, this Court must recall that the point has been more or less settled in later decisions including the decision rendered by Special Bench taking uniform view that in such eventuality the remedy is by way of revision and not appeal.

(2.) To elaborate the point urged in the batch of the revisional applications, a point is raised by the opposite parties that if an interlocutory order is passed by the Appellate Court in an appeal pending before it once the remedy provided under Order 43 Rule 1 of the Code, such remedy should be exhausted as the Court of Appeal exercises Original Jurisdiction under Section 107 of the Code. In other words, a preliminary objection is raised in this regard taking aid of the said provision and contends that the statutory remedy cannot be taken away in absence of any express provision and the party cannot take a different remedial route rendering the lagislative intent redundant.

(3.) The present revisional applications arise from the order passed by the Court of Appeal below which if passed by the Trial Court is amenable to be challenged by way of an appeal under Section 104 and Order 43 Rule 1 of the Code of Civil Procedure. Precisely, for such reason the common question of law is involved in the aforesaid revisional applications and they have been taken together as the decision taken on the legal point would guide and govern the maintainability thereof.