- (1.) THIS is an Application under Article 227 of the Constitution challenging the order dated 22nd January, 2003 passed by the Civil Judge (Junior Division), Najibabad in O.S. No. 62 of 1992 whereby an application filed by the petitioners seeking to summon original Will dated 14th July, 1987 in the Court of Judge, Small Causes, Bijnor was rejected. It is not in dispute that this order was passed in the suit filed by the plaintiff -opposite parties in which the petitioners were the defendants.
(2.) A question of some importance has arisen for decision before us whether the order rejecting the application seeking to summon the original Will dated 14th July, 1987 in the Court of Judge, Small Causes, Bijnor could be challenged by way of proceedings under Article 227 of the Constitution in view of the specific provisions contained in Section 115 of the Code of Civil Procedure. According to the learned Counsel for the petitioners, in view of the amendment in the Code of Civil Procedure, no application for revision of the impugned order would be maintainable. Learned Counsel for the petitioners further contended that according to law, an application under Article 227 of the Constitution against the impugned order is maintainable. We are unable to accept this contention of the learned Counsel for the petitioners. In our view when there is specific provision for filing a revision application under Section 115 of the Code of Civil Procedure, the question of filing an application under Article 227 of the Constitution does not arise.
(3.) THE Code of Civil Procedure, 1908 was amended in the year 1977. Before the present amendment of the Code of Civil Procedure, Section 115 of the Code of Civil Procedure was to the following effect: “115. [(1)] The High Court may call for the record of any case which has been decided by any Court subordinate of such High Court and in which no appeal lies thereto, and if such subordinate Court appears - (a) to have exercises a jurisdiction not vested in it by law, or (b) to have failed to exercise or jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity. The High Court may make such order in the case as it thinks fit: [Provided that the High Court shall not, under this section, vary or reverse any made, or any order deciding an issue, in the course of a suit or other proceeding, except where - (a) 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 (b) The order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.] (2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.” ;