1. This Rule was obtained by the petitioners, who were some of the defendants in the instant suit for partition, against an order of the learned trial Judge, allowing the prayer of the opposite parties for sale of the disputed properties under Section 2 of the Partition Act.
2. There is a good deal of controversy on the merits as to the maintainability of the said prayer for sale under Section 2 but the learned trial Judge having allowed the application, the order is, under the terms of Section 8 of the Partition Act, to be deemed to be a decree within the meaning of Section 2 of the Code of Civil Procedure.
3. In that view of the matter, the order would be appealable to the lower appellate court, having regard to the valuation of the Instant suit, and, from the decision of the lower appellate court, there may, be an appeal to this Court. The possibility, therefore, of a second appeal to this Court, more accurately, a second miscellaneous appeal--cannot be ruled out in the instant case and, accordingly, the instant application for revision under Section 115 of the Code of Civil Procedure would not be maintainable
4. The law on this point is now well settled by the observations of the Supreme Court in the case of S. S. Khanna v. F. J. Dillon, : 4SCR409 the relevant observations occurring towards the end of page 501 of the said report. Those observations are 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 was expressed earlier by this Court in the case of Nafar Chandra Sardar v. Kalipada Das : AIR1940Cal257 where the relevant observations of Nasim Ali J. speaking for the Court, appear at page 366 (of Cal WN) = (al p. 269 of AIR) and run as follows.
'That section (Section 116) authorises this Court to revise an order of a subordinate court in any case 'in which no appeal lies thereto'
The appeal referred to in this section may be an appeal to this Court under Sections 96, 100, 104 or under Order 43 of the Code of Civil Procedure or under any other statute. In the case of Sashi Kanta Acharya v. Nasirabad Loan Office Co. Ltd. : AIR1936Cal786 a second appeal to this Court was apparently barred under Section 102 of the Code. The decision in that case may be an authority for the proposition that, in cases where an appeal is allowed to the lower Appellate Court bill no appeal is allowed against an Appellate decree to the High Court, the person aggrived may invoke the jurisdiction of the High Court under Section 116, though he has not preferred any appeal to the lower Appellate Court. But that case is no authority for the proposition that, where an appeal is allowed to the High Court, the High Court can interfere under Section 115 of the Code.
The contention of judgment-debtors is that the word 'lies' in Section 115 means 'lies' at the time when the High Court is moved under Section 115 and that, in this case, a second appeal to this Court did not lie at the time when this Court was moved under Section 115 as no appeal to the lower Appellate Court had been then preferred and decided. In other words the contention is that the expression 'appeal lies' means that the right of appeal has already accrued. If this contention be sound, the position would be that a person aggrieved by a decree of the trial Court by refusing to file an appeal to the lower Appellate Court, can stifle a second appeal to this Court and can confer jurisdiction on the High Court to revise the decree of the trial Court. I am of the opinion that this was not the intention of the legislature in enacting Section 115. It can never have been intended by the legislature that where a person aggrieved by a decree of the trial Court has his remedy by way of appeal to this Court (if he will only first avail himself of that remedy by taking an appeal to the lower Appellate Court), he can seek his remedy in this Court under Section 115. The object of Section 115 was to give relief to a person who cannot get relief in this Court under Sections 96, 100, 104 or Order 43 or any other statute. The words 'appeal lies thereto' indicate that where a relief can be given by this Court in the exercise of its Appellate Jurisdiction, its Revisional Jurisdiction under Section 115 cannot be invoked. These words, in my opinion, mean 'appeal is allowed under the Code or any other law' In the case of Bani Madho Ram v. Mahadeo Pandey : AIR1930All604 Sulaiman and Niamatulla. JJ observed:
'It seems to us that no revision lies under Section 115, Civil Procedure Code. It was clearly a ease of a decree which could have been appealed against to the District Judge from whose decree a Second Appeal could have been filed to this High Court. It is, therefore, not a case in which no appeal lies to the High Court at all although no appeal could have been filed from the original decree of the first court direct In our opinion there is no ground for restricting the scope of the words 'in which no appeal lies thereto' to cases where no appeal lies from the order sought to be revised. So long as the party has a right to come up to the High Court by way of an appeal and has failed to avail himself of that opportunity by first going up to the District Judge and then coming up to the High Court, he cannot ask the High Court to interfere in revision.'
I respectfully agree with these observations.
5. The same view was taken in Nilimaprova Nandy v. Kadambani Dasi : AIR1944Cal309 where the matter was fully clarified in all its aspects.
6. In the light of these authorities with which we respectfully agree, the position is clear that, in the relevant section, Section 115 of the Code of Civil Procedure, the expression 'no appeal lies thereto' must be interpreted to mean and include only those cases, where no appeal, either directly or indirectly, lies to the High Court, or, in other words, the revisional power under Section 115 of the Code cannot be exercised by this Court in cases, where an appeal lies to it, either in the form of a first appeal or a second appeal, but, in other cases, where the matter cannot be brought up on appeal to this Court, either directly or indirectly, that is, either by way of a first or first miscellaneous appeal or a second or second miscellaneous appeal, its revisional power will not be excluded merely because there may be an appeal to some other Court. In the instant case, as we have already sufficiently indicated hereinbefore, the possibility of an ultimate appeal to this Court cannot be ruled out in respect of the order, which is challenged in this revisional application.
7. We would, accordingly, hold that the said revisional application would not be maintainable and this Rule must be discharged on that ground and it will not be necessary for us to go into the merits of the contentions of the respective parties and, accordingly, we would make no observations on the said merits leaving the same open in the instant proceeding.
8. In the premises, the Rule is discharged.
9. There will be no order for coats in thisRule.