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Pattammal Vs. Krishnaswami Iyer - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1928Mad794
AppellantPattammal
RespondentKrishnaswami Iyer
Cases ReferredKrishna Iyengar v. Appana Iyengar
Excerpt:
.....to the order in so far as it was decided against..........be preferred to the high court. to hold otherwise will amount to this: that in order to render a revision application entertainable the petitioner has only to abstain from preferring an appeal against the order to the lower court to which an appeal lies in the case. in my opinion the powers of revision are not intended to be exercised in any case in which the question which has to be decided may, if necessary, be raised in an appeal to the high court preferred under section 100 of the code. i am also of opinion that where the code provides an appeal to a lower court against an order the party aggrieved thereby must pursue that remedy and should not be permitted to invoke the powers of revision exercisable by this court except perhaps in some extreme cases where, but for such.....
Judgment:

Thiruvenkatachariar, J.

1. The question which has first to be considered in this case is whether this petition can be entertained under Section 115, Civil P.C. Under that section no application for revision in respect of any decree or order can be entertained if an appeal lies to the High Court in the case. The order sought to be revised was passed by the District Munsif of Shiyali upon an application for the execution of the decree of that Court in O.S. 97 of 1908. I think there can be hardly any doubt that the said order is a decree as defined in Section 2, Sub-section (2), Civil P.C. It relates to the execution of a decree for maintenance passed in favour of the petitioner under which certain immovable properties belonging to the defendants in the suit were charged for the payment of the annual maintenance decreed to her. Subsequent to the decree the respondent purchased from one of the judgment-debtors some of the properties over which the charge was created by the decree. The petitioner applied in execution of the decree to enforce the charge for realizing arrears of maintenance due to her under the decree and, so far as that relief is concerned, the respondent who had become the owner of the property by assignment from the original judgment-debtor must be deemed to be his representative within the meaning of Section 47, Civil P.C. He raised two objections to the execution of the decree as applied for by the petitioner, and the questions raised by him are stated in the order of the District Munsif. Both those questions are clearly questions which relate to the execution of the decree creating a charge against immovable properties which are now owned by the respondent. The order of the District Munsif determining those questions is, therefore, a decree as defined in the Code. Against the District Munsif's order an appeal lies to the District Court and a second appeal also lies to this Court.

2. It is argued for the petitioner that under Section 115 of the Code this Court cannot exercise its powers of revision only in a case in which an appeal lies direct to this Court from the order sought to be revised. Stress is laid on the word 'thereto' occurring in that section. According to this contention it is immaterial that the order itself is appealable and is of such a nature as can be brought up to this Court in second appeal. I am of opinion that this contention cannot be accepted as correct. The object of the section seems to be to confine the powers of revision to cases in which the question raised cannot be made the subject of an appeal to this Court. That the word 'appeal' in Section 115 includes a second appeal as well has been decided in Tirupati Raju v. Vissam Raju [1897] 20 Mad. 155, by Subramanya Iyer and Davis, JJ. In that case no doubt the revision petition was preferred from an order of an appellate Court against which an appeal could have been preferred to this Court under Section 100. Whereas in this case an appeal has first to be preferred to the District Court and it is only from the order passed in such an appeal a further appeal can be preferred to this Court. I am inclined to hold that any order which may be brought up in appeal to the High Court either directly or after an intermediate appeal to a lower Court should be held to be a case in which an appeal lies to the High Court. In other words the section deals with cases in which an, appeal as such, whether it is first appeal or a second appeal, can be preferred to the High Court. To hold otherwise will amount to this: that in order to render a revision application entertainable the petitioner has only to abstain from preferring an appeal against the order to the lower Court to which an appeal lies in the case. In my opinion the powers of revision are not intended to be exercised in any case in which the question which has to be decided may, if necessary, be raised in an appeal to the High Court preferred under Section 100 of the Code. I am also of opinion that where the Code provides an appeal to a lower Court against an order the party aggrieved thereby must pursue that remedy and should not be permitted to invoke the powers of revision exercisable by this Court except perhaps in some extreme cases where, but for such interference, irreparable injury might be done. But the present case is quite an ordinary one and there are no special circumstances which would necessitate an interference by this Court in revision. In fact an appeal to the lower Court will be a far more effective remedy as that Court can deal with all the objections which may be raised before it whether they relate to questions of law or fact and whose jurisdiction is not restricted to those questions which alone this Court in revision can entertain under Section 115 of the Code.

3. For these reasons I am of opinion that this revision application should be dismissed. I may add that this point was not pressed by the respondent himself for the reason that he has himself preferred what he styles a 'memorandum of objections' to the order sought to be revised. As regards the respondent's memorandum of objections it is contended for the applicant that no memo of objections can be put in a revision petition, as it can be in an appeal and that, therefore the memo of objections cannot be heard. If the petition itself is income petent as I am inclined to think it is, the memorandum of objections preferred by the respondent will also fail on the same ground. But as that question has been argued I may state what I consider to be the right view. In civil revision petition No. 627 of 1908 Munro, J. held that no memo of objections lies in a civil revision petition which in that case was preferred under Section 622 corresponding to Section 115 of the present Code, and the same view is also taken by a learned Judge of the Chief Court of the Punjab in Gurditta v. Dheru [1912] 150 P.W.R. 1912. But in Krishna Iyengar v. Appana Iyengar [1907] 17 M.L.J. 62, Miller, J., took the contrary view and held that it is open to the respondent in a civil revision petition entertained under Section 25, Provincial Small Cause Courts Act, to prefer a memorandum of objections. He rests that opinion upon the construction of Section 617 of the old Code which in his view makes applicable to revision petitions under Section 25, Provincial Small Cause Courts Act, the procedure relating to appeals. The learned Judge also entertained the objection on an independant ground as will be seen from the following passage in his judgment:

Apart from the memorandum of objections, I think the words of Section 25 are wide enough to empower ma having all the parties before me to transfer the liability from one defendant to another even without an application by the plaintiff.

4. In so far as Miller, J., holds that the procedure relating to appeals must be held to be applicable to civil revision petitions which may be preferred under Section 25, Provincial Small Cause Courts Act, or Section 115, Civil P.C., in virtue of Section 647 of the old Code which corresponds to Section 141 of the present Code, I am unable to agree with him and I think that the view taken by Munro, J., that the rule in Order 41 under which a memorandum of objections can be preferred by a respondent in an appeal does not extend to the revision petitions is the sounder view. But I also think that Miller, J. was right in entertaining the question raised in the memo of objections on the further ground stated by him viz., that the High Court's powers, of revision may be exercised even without any application by an aggrieved party and when a case is already before the Court and the necessary parties are also before it, it has ample powers to entertain questions which may be raised by the respondent and deal with those questions also if it thinks fit. It may be that the respondent may have substantially succeeded in the lower Court and it may not be worth his while to apply to the High Court in revision for setting aside so much of the order as was decided against him in the lower Court, but if the opposite party who has substantially failed applies in revision and that application is entertained, there is no reason why the respondent should not be allowed to state his objections also to the order in so far as it was decided against him. I am, therefore, of opinion that if this petition can be entertained the question raised on behalf of the respondent should also be considered. But in the view I take that this petition itself should be rejected as incompetent, it follows that the respondent's objections also cannot be entertained. I, therefore, dismiss both the application and the memorandum of objections.

5. Lastly, I wish to add that in this case the petitioner appears to have been misled by the respondent's purporting to file his objections to the execution of the decree as a claim under Order 21, Rule 58 as if he were not a party to the suit within the meaning of Section 47 and by the District Munsif also proceeding on the same view in his order. The petitioner may have, therefore, bona fide thought that the order passed was not one falling under Section 47 and was, therefore, not appealable, and in that view it is explained that the revision petition was preferred to this Court. I have no doubt that that circumstance will be taken into consideration by the Court to which any appeal may hereafter be preferred against the District Munsif's order for excusing the delay in filing such appeal.

6. In dismissing this revision petition and the memorandum of objections I make no order as to costs.


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