BRAHMDEO PRASAD Vs. BALDEO PRASAD

JUDGEMENT

(1.) This Civil Revision application is directed against the order dated 25.4.1998 passed by the Munsif, Hilsa (Nalanda) in Title Suit No. 30 of 1994 by which the Court below decided the question of limitation as a preliminary issue and dismissed the suit as barred by limitation.

(2.) At the very outset preliminary objection has been taken by the counsel for the opposite party about the maintainability of this revision application. According to the learned Counsel, the impugned order by which the suit had been dismissed is a decree which is appellable and, therefore, this revision petition is not maintainable. In view of the objection with regard to the maintainability of the revision petition, I have called upon the learned Counsel for the parties to advance their arguments on this question.

(3.) Mr. Mahesh Prasad. No. III, learned Counsel appearing for the petitioner submitted that the order under revision is not a decree inasmuch as it does not decide the rights of the parties and, therefore, the order is revisable. Learned Counsel for the petitioner put heavy reliance on a decision of a Division Bench of this Court in the case of Rameshwar Thakur and Ors. v. Neeraj Kumar Thakur and Ors. 1996 (1) All PLR 80. On the other hand, Mr. Rajendra Prasad, Senior Counsel appearing for the opposite party submitted that the Court below framed issues including the issue of limitation and fixed the suit for deciding the said issue as a preliminary issue. The Court below thereafter heard both the parties and after considering the entire facts of the case and the evidence on record came to the conclusion that the suit was not filed within the statutory period and is barred by imitation. The suit was accordingly, dismissed and a decree was drawn up. According to the learned Counsel, to only remedy available to the petitioner is to file an appeal as the order is not revisable. In this connection learned Counsel relied upon the decision of this Court in the case of Ram Barai Bhagat and Ors v. Munni Lal Singh and Ors. 1983 BBCJ 657, and the case of Smt. Basanti Devi and ors. v. Sri Santosh Kumar Verma 1998 BBCJ 273.