BANWARI LAL Vs. CHHEDI LAL

JUDGEMENT

(1.) This is an application for the revision of an order of the Munsif of Patehpur allowing a review. One of the questions raised was whether such an order was open to revision by the High Court. Under Section 115, Civil P. C.: 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 in case of Mahadeo Prasad V/s. Khubi Ram a Bench of this Court held that: Where a trial Court has acted with material irregularity in the exercise of its jurisdiction or acted illegally, the High Court has power to interfere in revision provided that no appeal lies to the High Court. Section 115, Civil P.C., does not require that no appeal in the meantime should have been preferred to the Distriot Judge or that, if preferred, it is only the order of the District Judge which can be revised.

(2.) These observations are of importance because it transpired in the course of the hearing that the order of the Munsif against which this application is directed had been made the subject of an appeal to the Subordinate Judge and that the decree which the Munsif had given in consequence of his review had been modified. It must be admitted that the decisions of this Court have not always been consistent on this point, and a recent ruling has been quoted on behalf of the opposite party, viz., that of the case of Sher Alt V/s. Jugmohan Ram , in which it was held that it was a recognized rule of procedure that the special and extraordinary remedy by invoking the revisional powers of this Court should not be exercised unless as a last resource for an aggrieved litigant. It is however clear to me that in the present case no appeal lay to the High Court. It is true that there might have been an appeal against the order allowing the review to the lower appellate Court under Order 43, Rule 1 (w), but from the appellate order no appeal has been provided by Section 104, Civil P.C. In my opinion, therefore there is no doubt that the High Court has jurisdiction to revise the order of the Munsif allowing a review, and I have heard the matter argued at considerable length.

(3.) The facts of the case are stated in full detail in the order of the Munsif. The Munsif originally dismissed the opposite party's suit on 31 January 1929, and there was an appeal to the Subordinate Judge which failed owing to the law of limitation. A second appeal was made to the High Court which was dismissed under Order 41, Rule 30, on 14 February 1930. In spite of this the Munsif in the order mow applied against allowed a review of his original order and decree dismissing the suit, and decreed the suit of the plaintiff opposite party. It will be observed that the result of these proceedings is that the decree of the Munsif, which followed the review or rather appellate decree of the Subordinate Judge which resulted from an appeal from the Munsif's decree, is wholly inconsistent with the decree of the High Court dated 14 February 1930.