M.M. Pareed Pillay, J.
1. Revision petitioners are respondents 3 to 10 (additional plaintiffs 3 to 10) in I.A. 1064/70 in O.S. 347/1953 of the Munsiff Court, Shertallay. The petition was filed by the defendants 5, 6 and 7 (respondents 1 to 3 herein) under Sections 144 and 151 of the C.P.C. for re-delivery of the suit property with mesne profits. The learned Munsiff ordered the plaintiffs to pay Rs. 2011.50 to the defendants as interest on value of improvements to compensate the loss of profits suffered by them on account of the dispossession made without paying the value of improvements.
2. Suit was one for redemption of mortgage. That suit was decreed on depositing the mortgage amount and value of certain improvements. Plaintiff filed appeal A.S. 644/62 contending that they are not liable to pay value of improvements. Appeal was allowed holding that plaintiffs are not liable to pay value of improvements. Property was taken delivery by the plaintiffs on the deposit of mortgage amount on 31-3-1965. Defendants filed S.A. 573/66 before this Court against the judgment in A.S. 644/62. Second appeal was allowed and the case was remanded to ascertain the value of improvements. The Munsiff Court determined the value of improvements to the tune of Rs. 1561.35. A.S. 95/70 filed by the plaintiffs challenging the quantification of value of improvements was dismissed. S.A. 214/73 filed before this Court was also dismissed on 25-10-1976. Immediately, the value of improvements was deposited by the plaintiffs on 8-11-1976. Defendants filed I.A. 1064/70 to get re-delivery of the property from the plaintiffs alleging that they have no right to get possession of the property from them without paying the value of improvements. They contended that possession of the property by the plaintiffs is unlawful and so they are liable to surrender possession to them with mesne profits at the rate of Rs. 700/- and interest at 6% per annum. It is on that petition that the learned Munsiff passed the impugned order.
3. Counsel for the respondents raised the preliminary objection that the revision petition is not maintainable as the order impugned has been passed on a petition under Section 144, C.P.C. Counsel submitted that the only course open to the revision petitioners is to file appeal and the revision filed is illconceived. He submits that determination of any question within Section 144 is a decree and against it the aggrieved party can only file appeal.
4. Section 2(2) of the C.P.C. postulates that the rejection of a plaint and the determination of any question within Section 144 shall be a decree. Section 144 makes it clear that Court may make any orders including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation, reversal, setting aside or modification of the decree or order. Though Section 151 of the C.P.C. is also mentioned in the petition (I.A. 1064/70) it is really a petition under Section 144 of the C.P.C. as the prayer is to obtain redelivery of the property from the plaintiffs. As the impugned order has been passed in a petition filed under Section 144, C.P.C. the unambiguous position is that the order passed can only be construed as a decree. Contention of the revision petitioners that the Court below has not allowed re-delivery of the property and has only awarded interest and therefore the decree has not been set aside or modified or varied and so the revision petition is maintainable is without merit.
5. Determination of any question within Section 144, C.P.C. will be a decree and hence appealable. In AIR 1936 Cal 812 (Debendra Nath v. Rai Rampratap Chamaria) it is held as follows :
'Rejection of a prayer for restitution under Section 144 on the ground of limitation amounts to determination of question under Section 144 and the order dismissing the application is a decree and is therefore appealable and as such the High Court has no jurisdiction to interfere under Section 115.'
The argument advanced in the above case was that the decision in the application under Section 144, C.P.C. on the ground that it is time barred is a decision on a question collateral to the question of restitution and hence it is not a decree and not appealable as such. The Calcutta High Court has not accepted the above contention and held that the rejection on the ground of limitation is a question decided under Section 144, C.P.C. and is therefore appealable. Contention of the revision petitioners that as restitution has not been allowed by the Court below and as only interest has been awarded, the order impugned though on a petition under Section 144, C.P.C. is revisable is not legally sustainable. As the impugned order has been passed on the petition filed under Section 144, C.P.C. the preliminary objection has to be upheld.
6. Section 115(2) of the C.P.C. postulates that the High Court shall not, vary or reverse a decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto by invoking its jurisdiction under Section 115. As the impugned order has been passed on a petition under Section 144, C.P.C. and as the aggrieved party has an appeal remedy open to him this Court cannot interfere by exercising this Court's power under Section 115, C.P.C. Exercise of the power under Section 115, C.P.C. in a case where a party is given the right of appeal will not be in accordance with the provisions of the C.P.C.
This Court has no jurisdiction to interfere with the order of the Court below under Section 115, C.P.C. Revision petition is not maintainable. C.R.P. is dismissed. There is no order as to costs.