U THILAKAN Vs. KALODI KUNHALANKUTTY
HIGH COURT OF KERALA
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(1.) The main question which arises for consideration is whether a revision will lie against the judgment in a civil miscellaneous appeal filed challenging the order made by the Trial Court in an application for temporary injunction.
(2.) S.115 of the Civil Procedure Code which deals with the revisional powers High Court is having was amended in 1976 and before the amendment there was no restriction on the powers of the High Court and any order made by any Court subordinate to it was liable to be revised if there was any of the circumstances mentioned in that section. The order of a subordinate Court should be revised by the High Court if the subordinate Court appeared to have exercised a jurisdiction not vested in it by law, or to have failed to exercise a jurisdiction so vested, or to have acted in exercise of its jurisdiction, illegality or with material irregularity.
(3.) By the amendment made in 1976 S.115 was divided into two sub-sections. Sub-s.(1) retained the provisions in the original S.115 and a proviso was also added to it. The proviso added was that the High Court shall not, under that section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party whom it was made. Sub-s. (2) was added by the amendment in 1976 as a result of which a restriction on the power of the High Court to revise an order was imposed. What sub-s.(2) of S.115 said was that the High Court shall not, under the section, vary or reverse any decree or order against which an appeal could be filed either to the High Court or to any Court subordinate thereto. Even before amendment of the section in 1976 there was a restriction that the High Court could not exercise revisional powers in cases where the order was one against which an appeal could be filed. Before the amendment the position was that the High Court was not having revisional powers in cases where an order was one against which an appeal could be filed in the High Court. By the amendment in 1976 a change was made to the effect that the High Court will not be having the power of revision when an appeal could be filed against that order either to the High Court or to any Court subordinate to it. The position after the above amendment was that the High Court shall not under that section vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto. So, the position till the amendment in 1976 was that the High Court was having the power to exercise revisional powers in respect of orders even though appeal was maintainable against those orders to any Court subordinate to the High Court.;
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