Decided on April 02,1997

BHAGWAN DASS Respondents


SURINDER SARUP, J. - (1.)Heard the learned Counsel for the parties. Perused the office report as also the impugned order alongwith the lower Court record which has since been received. It is stated by the learned Counsel for the petitioners that the plaintiff has applied before the lower Appellate Court, i e. the Court of District Judge, Shimla for being granted a decree for possession of the suit property. This obviously means that that the defendant -petitioner is in possession of the same. Therefore, instead of ordering status quo stay of the impugned judgment and decree granted should have stay, as prayed for by the defendant -petitioner.
(2.)The learned Counsel for the plaintiff -respondents has cited before me a case reported as Ganesh Shankar Naik v. Joao Jose Catao Peregrino da Costa, AIR 1976 Goa, Daman & Diu 24. It has been held therein that when stay in refused by Appellate Court under Order 41, Rule 5, C ยป P. C, refusal to exercise discretion does not amount to decide a Case so as to attract section l!5f C. P C. In other words, such an order is not open to revision. He has also cited a case reported as M/s. Bhojroj Kunwarji Oil Mill end Ginning Factory and another v. Ycgrajsinha Shankersinha Parihar and others, AIR 1984 SC 1894, It has been laid down therein that interference is only possible on the ground that a different view on facts elicited was possible. It is cot permissible in exercise of revisional jurisdiction. He has further cited as case reported as Shri M 1. Sethi v. Shri R. P. Kapcor% AIR 1972 SC 2379. It has been field therein that (he jurisdiction of the High Court under section 115, C.P.C. is a limited one. The section is not directed against conclusion of law or fact in which the question of jurisdiction is not involved. He has further cited a case reported as Ratilal Batobhai Nazar v Ranchhodbhai Shankarbhai Patel and another, AIR 1966 SC 439. It has been held therein that erroneous construction placed upon a statute by the trial Court does not amount to exercising jurisdiction illegally or with material irregularity and would not furnish a ground for interference under section 115, C. P. C,
(3.)In so far as the three Apex Court Rulings are concerned, they are not directly on the point in issue So far as the Ruling of. Goa, Daman & Diu is concerned, this Court is of the impression that this view bas not been approved by other High Courts, though at the moment no specific authority or Ruling comes to my mind.

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