HEMALATA PADHY Vs. KHITI SWAIN

JUDGEMENT

(1.) This civil revision has been filed challenging the judgment dtd. 8/12/2021 passed by the learned District Judge, Ganjam, Berhampur in F.A.O. No. 5 of 2020 filed under Order 43 Rule-1(d) of the Code of Civil Procedure, 1908, for short "the Code".

(2.) The case of the present petitioner is that she being plaintiff had instituted C.S. No. 168 of 2012 before the learned Civil Judge (Sr.Divn.), Berhampur, Ganjam impleading the present opposite parties as defendants. According to Mr.Dash, learned counsel the petitioner the said civil suit which was valued at Rs.67,600.00 was decreed ex-parte against the defendants and accordingly the defendants were directed to vacate the suit house and pay arrear rent and damages. The present opposite parties filed C.M.A. No. 17 of 2019 before the learned Civil Judge (Sr.Divn.), Berhampur under Order 9 Rule-13 of "the Code" read with Sec. 5 of the Limitation Act, 1963 with prayer to set aside the ex-parte judgment and decree in C.S. No. 168 of 2012 by condoning the delay in filing the C.M.A. for restoration of the original suit to its file. The same having been dismissed on contest, the opposite party No.1 preferred an appeal under Order 43 Rule-1(d) of "the Code" styled as F.A.O. No.5 of 2020 against such dismissal order dtd. 13/2/2020 passed by the learned Civil Judge (Sr.Divn.), Berhampur. The said F.A.O. was allowed on contest on 8/12/2021 against the present petitioner subject to payment of cost, consequently the learned District Judge set aside the ex-parte order dtd. 3/9/2013 passed in C.S. No. 168 of 2012 so also the ex-parte judgment and decree passed in the said suit under Anneuxre-2. Challenging the said judgment dtd. 8/12/2021 under Annexure-2 as rendered in F.A.O. No. 5 of 2020, the present civil revision has been preferred.

(3.) At the outset when Mr.Dash, learned counsel for the petitioner was asked about maintainability of the civil revision as the impugned judgment does not arise out of a original suit or other original proceeding in the background of the decision of the Supreme Court as rendered in Vishnu Awatar V. Shiv Autar and others reported in (1980) 4 SCC 81 and the judgment of this Court as rendered in Smt. Banarasi Devi Saha V. Basudev Lal Dhanuka reported in Vol. 34(1992) O.J.D. 462(Civil) and also on the ground that the suit was valued at less than Rs.5.00 lakhs, Mr. Dash submitted that civil revision is maintainable as the impugned judgment under Annexure-2 though passed in an appeal is clearly covered by the phrase 'other proceedings' as used in Sec. 115 of "the Code" as in force in State of Odisha as on date. In this context he relied upon following four decisions.