K.S.Rakhra, J. - (1.) This is a revision under Section 115 of C.P.C. against the judgment and the order dated 22nd October, 1997 passed by IIIrd Additional District Judge, Bijnor in an appeal under Section 39 of Arbitration Act, 1940, i.e., Civil Appeal No. 2 of 1997, thereby the judgment and decree dated 23rd November, 1996 passed by Civil Judge, (Senior Division), Bijnor in O.S. No. 42 of 1995, was reversed and the fard has been made rule of the Court.
(2.) Learned counsel for the opposite party raised a preliminary objection with the maintainability of the revision under Section 115, C.P.C. on the ground that the provisions of Section 115, C.P.C. as amended in their application to State of Uttar Pradesh, bar the filing of the revision against orders other than the order passed in original suits and other proceedings of similar nature. The contention of the learned counsel for the respondent is that the impugned order in this revision and the order passed in appeal by the Additional District Judge and therefore, no revision against this order. In support of his contention, learned counsel for the respondent has placed reliance on a Full Bench decision of this Court in Jupiter Chit Fund (Pvt.) Ltd. v. Dwarka Diesh Dayal and Ors., AIR 1979 All 218, in which the provisions of Section 115, C.P.C. as amended in State of Uttar Pradesh before and after the Central Act 104 of 1976, were considered to be interpreted. It was held that the revisional jurisdiction under Section 115, C.P.C. cannot be exercised with regard to the orders passed in appeals or (sic).
(3.) It is significant to note that the provisions of Section 115, C.P.C. in their notification to State of Uttar Pradesh as amended from time to time read as follows : "115. Revision.--The High Court in cases arising out of original suits or other proceedings *[of the value exceeding one lakh rupees or such higher amount not exceeding five lakh rupees as the High Court may from time to time fix, by notification published fn the Official Gazette including such suits or other proceedings instituted before the date of commencement of the Uttar Pradesh Civil Laws (Amendment) Act, 1991, or as the case may be, the date of commencement of such notification], 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 proceedings, except where : (i) the order, if so varied or reversed, would finally dispose of the suit or other proceedings ; 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 : *[Provided also that where a proceeding of the nature in which the District Court may call for the record and pass orders under this section was pending immediately before the relevant date of commencement referred to above, in the High Court, such Court shall proceed to dispose of the same.] Explanation.--In this section, the expression 'any case which has been decided' includes any order deciding an issue in the course of a suit or other proceeding.";