R KESAVALU NAIDU Vs. TJAYAGANAPATHI MUDALI

JUDGEMENT

(1.) THESE are disputes between the successors of two puisne mortgagees, each having obtained a decree without making the other a party. One Srinivasalu Naidu was appointed a receiver in his suit and was allowed to remain in possession as such until his death. After his death, the other mortgagees, through whom the respondents claim, put in a petition for possession and the petition was granted ex parte. The present petitioners, the successors in interest of Srinivasalu Naidu, thereupon filed applications under Order 21, Rule 100, complaining of the dispossession and setting forth their right to retain possession. After enquiry an order was passed confirming the previous order and dismissing the petitions. A preliminary objection has been taken here as to the maintainability of the petitions. I have no doubt from the authorities quoted to me, e.g., Seetaramayya V/s. Subramanian 1935 58 Mad 936, Birj Mohan Thakoor V/s. Uma Nath Choudhury (1892) 19 IA 154, Sundaram V/s. Mamsa Mavuthar 1921 44 Mad 554 and Indu Bhusben Das V/s. Haricharan Mandal 1931 58 Cal 55, that a revision petition will lie; but the question still remains whether this Court should interfere in orders of this kind. My attention has been drawn to Dalayaya V/s. Sundara Narayana 1936 69 MLJ 908, a recent decision of this Court, in which a dispute arose regarding the distribution of property on petitions for rateable distribution. It was held that the matter was governed by Section 63, Civil P.C. from which no appeal lay, but that nevertheless the parties aggrieved were not without a remedy by way of a separate suit.

(2.) THE present case however differs from that in that the Legislature clearly intended, by the wording of Order 21, Rule 103, that the normal remedy for a party aggrieved by an order passed under Order 21, Rule 100, is by way of suit. Such a suit is ordinarily as cheap as and more convenient than the filing of a revision petition in this Court. It would also be more satisfactory if the disputes between the parties, which depend on the adjudication of facts as well as points of law, should be thoroughly fought out in a regular suit than in this revision. In the four cases first quoted there were cogent reasons for interference by the High Court; but there are no grounds in the present applications for thinking that it would work any hardship on the petitioners if they were driven to file suits. Fortunately, the position is not complicated through more than a year having elapsed from the date of the order under Order 21, Rule 100, and so that there is still time to file a suit. THE petitions are accordingly dismissed with costs.