- (1.) This revision by the defendants has been filed against the judgment and order dated 7-4-1993 passed by the IV Additional District Judge, Hamirpur rejecting the application No. 80-Ka filed by the defendant- revisionists for temporary injunction and clarification of the order dated 11-12-1990, in Civil Appeal No. 9 of 1990.
(2.) The contesting opposite parties had filed a caveat in this Court. A preliminary objection has been raised by the learned counsel for the caveators that this revision filed against the order of the appellate court is not maintainable in view of the law laid down in the case of All 218; (1979 All LJ 685) (FB). It may be mentioned that the report of the Stamp Reporter is also to the same effect. Learned counsel for the revisionist has, however, contended that the revision in the present case is not barred and is very much maintainable before this Court. Learned counsel has tried to distinguish the Full Bench Decision.
(3.) To appreciate the argument of the learned counsel for the parties it will be necessary to refer to the provisions of Section 115, C.P.C. as it stands at present after it was amended by the Code of Civil Procedure (Uttar Pradesh Amendment) Act No. 31 of 1978, which read as follows:-" 115. Revision -- The High Court in cases arising out of original suits or other proceedings of the value of twenty thousand rupees and above, including suits or other proceedings instituted before Ist August, 1978, and the District Court in any other case including a case arising out of an original suit or other proceedings instituted before such date, may call for the record of any case which has been decided by any court subordinate to such High Court or District Court, as the case may be, and in which no appeal lies thereto, and if such subordinate court appears (a) to have exercised a jurisdiction not vested in it by law; or (b) to have failed to exercise a jurisdiction so vested; or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity; the High Court or the District Court, as the case may be, may make such order in the case as it thinks fit; Provided that in respect of cases arising out of original suits or other proceedings of any valuation, decided by the District Court, the High Court alone shall be competent to make an order under this section: Provided further that the High Court or the District Court shall not under this Section, vary or reverse any order including an order deciding an issue, made in the course of a suit or other proceeding, except there,- (i) the order, if so varied or reversed, would finally dispose of the suit or other proceeding, or (ii) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made. Explanation -- In this section, the expression 'any case which has been decided' 'including any order deciding an issue in the course of a suit or other proceeding.";