1. A preliminary objection has been taken by the learned advocate for the opposite party that no revision lies, having regard to the provisions of Section 253, Agra Tenancy Act (3 of 1926). The facts which bear on the arguments addressed to me on the preliminary objection are briefly as follows:
2. Mt. Makhna, the opposite party, instituted a suit for profits in the revenue Court against the defendant applicant in respect of a certain zamindari share. Her proprietary right to that share was denied by the defendant. Acting under Section 271, Agra Tenancy Act (3 of 1926), the revenue Court made a reference to the civil court for a finding on the issue thus raised on the question of proprietary right. The defendant applicant had, in the meantime, instituted in the civil court, a declaratory suit in which the same question was raised. The civil court decided the common issue raised before the revenue Court and before itself in a consolidated proceeding which resulted in the dismissal of the suit brought by the defendant applicant and a finding in favour of the proprietary right set up by Mt. Makhna in the suit for profits pending in the revenue Court. On receipt of such finding, the revenue Court proceeded to decide the question of proprietary right arising in the suit for profits in terms of the finding returned by the civil court; but the defendant applied for stay of the suit for profits on the ground that he had preferred an appeal to this Court from the. decree passed in the title suit brought by himself in the civil court. The application was founded on Sections 10 and 151, Civil P.C. The revenue Court refused to stay further proceedings in the suit for profits. The present revision was then filed. It should be mentioned that, having regard to the value of the subject matter-of the suit pending in the revenue Court, no appeal can lie direct to this court but to the District Judge.
3. It is common ground that the revisional jurisdiction of this court has to be determined with reference to Section 253, Agra Tenancy Act (3 of 1926), and not Section 115, Civil P.C. The question is whether in the circumstances already stated, Section 253, Agra Tenancy Act (3 of 1926), bars the jurisdiction of this Court to entertain a revision from the order of the Assistant Collector refusing to stay the suit for profits pending before him. That section runs as follows:
The High Court may call for the record of any suit or application which has been decided by any subordinate revenue Court and in which an appeal lies to the District Judge and in which no appeal lies to the High Court, and if such subordinate revenue Court appears : (a) to have exercised a jurisdiction not vested in it by law or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity the High Court may pass such order in the case as it thinks fit.
4. The High Court is empowered to call for the record of a suit or application which has been decided by a subordinate revenue Court and not of one which is still pending. Ordinarily, therefore a revision lies after the proceedings in a suit or those started by an application terminate. It is, however, easy to imagine the case of proceedings started by an application made in a pending suit, for example, where a suit is dismissed for default of appearance and an application is made for restoration. If such application is dismissed an appeal lies to the District Judge but not to the High Court (assuming the valuation leads to this forum of appeal) In such a case a revision would lie though the suit is still pending. Groups B to E Schedule 4, Tenancy Act (3 of 1926), mention cases which are started by application wholly independant of suits. In all those cases, if appeal lies to the District Judge but not to the High Court the latter can call for the records in the exercise of its revisional jurisdiction. It was contended by learned advocate for the respondent that applications referred to in Section 253 are those specified in groups B to E, Schedule IV. I do not think this is the case. I have already given an instance of an application made in a pending suit and the language of Section 253 is wide enough to include other cases, provided other conditions exist.
5. Part of the record of a suit may be the whole record of a proceeding based on an application made in the suit. The expression 'record of an application' cannot, therefore, create any difficulty. The phrase 'in which an appeal lies to the District Judge' creates an insuperable bar to revisions from all interlocutory orders where no appeal lies to the District Judge. It was contended by the learned Counsel for the applicant that as an appeal lies to the District Judge in the suit itself an order refusing to stay the suit can be the subject of a revision. But this view militates against another part of the section, namely, the condition that it should have been decided. If the suit is still pending no revision can lie as regards the suit itself. Obviously the word 'which' at both places refers to one and the same proceedings. In my opinion the revisional jurisdiction of the High Court can be invoked only after the termination of the proceedings in the suit or those based on an application made in the suit or otherwise, provided in either case an appeal lies to the District Judge but not to the High Court from the final order (that is, decree in case of a suit) passed in the suit or in the proceeding started by an application.
6. Clauses (a), (b) and (c), Section 253, have been taken verbatim from the corresponding clauses of Section 115, Civil P.C., but a somewhat different language has been used in the opening part of of Section 253 to sail clear of the difficulty which arose in cases under Section 115, Civil P.C. from the words 'case decided.' Some Judges held that that expression excludes interlocutory orders from the revisional jurisdiction of the High Court while others took a contrary view. Section 253, Agra Tenancy Act 3 of 1926 has avoided the use of those words and made it clear that an interlocutory order is not open to revision unless it was passed on an application and unless an appeal lies therefrom to the District Judge but not to the High Court. In the case before me the order of the Assistant Collector refusing to stay the' proceedings in the suit pending before him was passed on an application and may be taken to mark the termination of a proceeding started by an application made for stay. No appeal, however, lies to the District Judge from such an order. It is not therefore open to revision at this stage. In this view the preliminary objection prevails and the application is dismissed with costs.