GUPTA AND CO Vs. KRIPA RAM BROTHERS

JUDGEMENT

(1.) This case has been, referred to a Full Bench because of a. conflict of opinion in this Court. The-applicant firm was the plaintiff in the-Court of the Munsif of Agra in a suit brought to get a previous decree set aside. On a report made by the office that the court-fee paid by the plaintiff was insufficient, the Court, having heard the plaintiff's counsel, held that the amount of the court-fee paid was insufficient and ordered that the plaintiff should make good the deficiency. Instead of either paying the balance of the court fee or allowing the plaint to be rejected and then appealing, from the order, the plaintiff filed an application in revision from the order of the Munsif challenging its propriety. The main question in the case is whether a. civil revision lies from such an order and can be entertained by this Court. It is not necessary to deal at length with the contention that the record having been sent for by a Single Judge of this Court the question whether a case has or has not been decided must be deemed to have been set at rest and it is no longer open to the respondent's counsel to urge that this High Court has no jurisdiction to entertain a revision. Obviously an ex parte order directing the record to be sent for cannot finally dispose of the question whether this Court has jurisdiction to entertain a revision or for the matter of that whether a revision at all lies.

(2.) There are undoubtedly a large number of cases in this very Court in which opinions have been expressed either that a revision lies or that it does not lie. The cases other than those in which more court-fees were demanded are not relevant. I should however like to consider the recent Full Bench cases of this Court in particular so as to see whether the principles laid down therein apply to the case before us. In Buddhu Lal V/s. Mewa Ram A.I.R. 1921 All. 1 it was held by the majority of the Judges that no revision would Ha from a finding recorded by the Court below that it had jurisdiction to entertain the suit. Where therefore the decision amounts to a mere finding on an issue no revision would lie under this Full Bench ruling.

(3.) In Ram Sarup V/s. Gaya Prasad a revision from an appellate order directing the setting aside of an ex parte decree when the appellate Court had had no power to intervene at all was allowed. But in that case the revision was from the order of the District Judge passed on appeal before whom certainly there was a case pending which had been finally disposed of by the Judge and after such disposal no further matter remained pending before him. The order no doubt was not a decree nor even an appealable order, nevertheless it was an order which marked the complete termination of the case pending before the District Judge and was therefore considered to come within the scope of Section 115, Civil P.C. This case is an authority for the proposition that where an independent proceeding, even though not amounting to a suit, is completely disposed of, it would be a "case" decided within the meaning of the section. In Radha Mohan V/s. Abbas Ali it was laid down that an order setting aside an ex parte decree was a "case" decided within the meaning of the section and that a revision would lie from such an order. Obviously when an ex parte decree is passed the suit for the time being is terminated and a fresh and independent proceeding is started by an application under Order 9, Rule 13, Civil P.C. for the setting aside of such a decree. The final disposal of such an application was held in that case to amount to the decision of a "case," particularly as the propriety of that decision could not be challenged subsequently in an appeal from the decree ultimately passed in the case.