(1) The question that is raised is whether a petition to revise an order of the trial court vacating an order of interim injunction passed by it, is revisable by the High Court under S. 115 C.P.C. without the petitioner filing an appeal against the order to the District Court under O. 43 Rule 1(r) C.P.C. The petitioner, a tenant, filed O. S. 425 of 1964 on the file of the District Munsif's court, Madurai Town, for setting aside an order directing his eviction in R. C. O. P. 352 of 1961 and for injunction restraining the respondent from executing the said order. Along with the plaint, the petitioner filed I. A. 1763 of 1964 for an injunction restraining the respondent from taking execution proceedings pending disposal of the suit. Interim injunction was ordered on 28-9-1964. Injunction was made absolute on 17-12-1964. The respondent filed I. A. 529 of 1965 for dissolving the order of Injunction passed in I. A. 1763 of 1964 on the ground that the order of injunction was made on some misapprehension. The trial court vacated the interim injunction.
It is not disputed that the petitioner has a right of appeal to the Subordinate Judge against the order vacating interim injunction under Order 43 Rule 1(r) C.P.C. The office raised an objection as to the maintainability of the revision petition in this court in view of an appeal having been provided under order 43 Rule 1(r) C.P.C. Section 115 of the C.P.C. may be extracted.
"The High Court may call for the record of any case which has been decided by any court subordinate to such High Court, and in which no appeal lies thereto, and if such subordinate 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 make such order in the case as it things fit."
The powers of revision may be exercised in any case, which has been decided by a court subordinate to the High Court in which no appeal lies thereto. We are concerned with the words "in which no appeal lies thereto." It has been held that, if an appeal lies to the High Court against the order sought to be revised, a revision is not competent. The appeal to the High Court may not necessarily be directly from the order complained against. An appeal may lie to the High Court indirectly by way of a second appeal. Even then, the revisional jurisdiction of the High Court under S. 115 C.P.C. has been held to be barred. But, if no appeal lies against the order to the High Court directly or indirectly, the question arises whether the jurisdiction of the High Court under S. 115 C.P.C. is barred because an appeal is provided to a subordinate court. The wording of S. 115 C.P.C. would not warrant an interpretation excluding the jurisdiction of the High Court, even though no appeal directly or indirectly lies to the High Court. There cannot be any dispute that the words "no appeal lies thereto" can only refer to an appeal to the High Court. On a literal construction of the section, there is no justification for excluding the revisional jurisdiction of the High Court under S. 115 C.P.C. In cases in which no appeal either directly or indirectly lies to the High Court. The view expressed by Mullah in Civil Procedure Code, Volume 1, 13th Edn. at p. 492 that in cases in which an appeal lies under Section 104(1) C.P.C. the High Court has no jurisdiction to revise the order as it is an appealable order does not seem to be correct in view of the decision of the Supreme Court in S. S. Khanna v. F. J. Dillon, . At P. 501, the Supreme Court observed as follows:
"If an appeal lies against the adjudication directly to the High Court, or to another court from the decision of which an appeal lies to the High Court, it has no power to exercise its revisional jurisdiction, but where the decision itself is not appealable to the High Court directly or indirectly, exercise of the revisional jurisdiction by the High Court would not be deemed excluded."
The same view has been taken by the Kerala High Court in Vasu v. Narayanan Nambooripad, and Martha Nicholas v.
Yesamma, 1961 Kerala L. T. 927, and by the Patna High Court in Bahela Kuer v. Garjan Rai, . Natesan J. of this court also took the same view in S. R. 31219 of 1964 (Mad). I am in respectful agreement with the view that a revision to the High Court is not incompetent when there is no appeal to the High Court directly or indirectly against an order even though an appeal is provided to a subordinate court.
(2) Though a revision under Sec. 115 C.P.C. Is not incompetent against an order in which there is no appeal directly or indirectly to the High Court, the High Court would, as a rule, rarely interfere, when a regular appeal is provided for under the Civil Procedure Code to a subordinate court. To do so would mean by-passing a statutory provision for an appeal.
(3) The question whether an interlocutory order vacating an interim injunction would amount to "any case" under S. 115 C.P.C. And whether the trial court has exercised its jurisdiction not vested in it by law or has failed to exercise jurisdiction so vested, or has acted in the exercise of jurisdiction illegally or with material irregularity cannot be considered at this stage. The petition will be numbered and posted for admission.
(4) Order accordingly.