SARWAN SINGH & OTHERS Vs. MOHAR SINGH

JUDGEMENT

(1.) As to whether an order against which no appeal lies, by virtue of Sec. 102 of the Code of Civil Procedure (hereinafter referred to as the Code), can be assailed in a petition filed under Sec. 115 of the Code or Art. 227 of the Constitution of India or not, is the issue which this Court is called upon to answer.

(2.) While passing judgment dated 24th Nov., 2016 in Civil Revision No. 168 of 2016, titled as Sarwan Singh and others Vs. Mohar Singh, the learned Single Judge has referred the matter to a larger Bench on the question of maintainability of a petition under Art. 227 of the Constitution of India in cases where second appeal against the judgment and decree is specifically barred under Sec. 102 of the Code and the necessity being conflicting views taken by the two learned Single Judges of this Court in passing judgments in Civil Revision No. 58 of 2009, titled as Managing Director, H.P. State Cooperative Marketing & Consumer Federation Ltd. (Him Fed), District Shimla Vs. Sh. Rajinder Singh; Civil Revision No. 59 of 2009, titled as Managing Director, H.P. State Cooperative Marketing & Consumer Federation Ltd. (Him Fed), District Shimla Vs. Sh. Sita Ram, decided on 30.03.2016; and CMPMO No. 439 of 2010, titled as Subhadra Devi Vs. Kishori Lal, decided on 14.12.2010.

(3.) In CMPMO No. 439 of 2010, titled as Subhadra Devi Vs. Kishori Lal, decided on 14.12.2010, learned Single Judge held that provisions of Sections 100 and 102 of the Code cannot be circumvented by filing a petition under Art. 227 of the Constitution of India. Para-3 thereof reads as under: