Rakesh Sharma, J. - (1.) THIS is a fresh case listed for admission/hearing today. Sri U.K. Srivastava appears for the revisionist and Sri Umesh Chandra Pandey has put in appearance on behalf of the opposite party. This civil revision has been filed under section 115 of the Code of Civil Procedure against the order dated 3.3.2006, passed by the Court of Civil Judge (Senior Division) Malihabad, Lucknow in Misc. Case No. 94 -C/2005 M/s. Kisanotthan Co -operative Housing Society Ltd., Lucknow v. O.P. Srivastava, under section 47, C.P.C.
(2.) IT emerges from record that the revisionist -society had purchased khasra plots Nos. 713 -A and 713 -B having an area of 3 bigha, 3 biswa and 13 biswansi, situate at village Kanchanpur Matiyari, P.S. Chinhat, District Lucknow, from its previous owner late Deokali through a registered sale -deed dated 15.11.1994. The revisionist -society thus claims itself to be the absolute owner of the said land. As per learned Counsel for the revisionist, the society has developed the above -said land and carved out small pieces of plots for residential house and the same have been sold to its members. Some houses have also been constructed on the land. The revisionist -society learnt that a Regular Suit No. 174 of 1991 for recovery of some amount was filed by Sri O.P. Srivastava, opposite party against the previous owner late Deokali. The said suit was later on decreed on 5.9.1991. The opposite party had sought execution of the decree by filing Execution Case No. 20 of 1995. The revisionist entered into this litigation by filing a formal application under Order XXI, Rule 58, C.P.C. for setting aside the attachment order. This application was dismissed in default. However, another application was filed by the revisionist -society under section 47 and Order XXVI, Rule 9, C.P.C. raising objections to the execution proceedings. The revisionist submitted an application (paper No. Ga -13) seeking appointment of an Advocate Commissioner, who could inspect the site, land in dispute and submit his report. This application was rejected by the learned Civil Judge (Senior Division) Malihabad, Lucknow vide order dated 3.3.2006. Feeling aggrieved of the said order, the revisionist has preferred this revision. Sri Umesh Kumar Srivastava, learned Counsel for the revisionist has assailed the impugned order on the ground that the learned Court below has committed manifest error of law and jurisdiction in to considering the fact that the auction sale has been conducted in respect of a land, over which several residential houses were obstructed and are in existence. The learned Court below has ignored the settled principles of law that only that property can be attached and sold, over which the judgment debtor has saleable interest. The Court below has acted illegally in ignoring the fact that the property in question was not subject -mater of dispute in Regular Suit No. 174 of 1991 and was purchased by the revisionist -society much before the initiation of execution proceedings. According to Sri Srivastava, the revisionist -society was deprived of its right to plead its case with evidence; the application ought to have been allowed by the learned Court below.
(3.) SRI Umesh Chandra Pandey, learned Counsel for the opposite party has strongly opposed the revision petition. At the out -set, it has been submitted that the revisionist -society was neither a party, nor a representative of any party to the regular suit which was filed by the opposite party. The application of the revisionist under Order XXI, Rule 58, C.P.C. has already been dismissed in default on 7.2.2003. The application for recall of the said order filed on 21.2.2003 was also dismissed on 21.8.2004. As per learned Counsel for the opposite party, the impugned order dated 3.3.2006 rejecting the application for issuance of a commission moved under Order XXVI, Rule 9, C.P.C. is merely an interlocutory order; it does not amount to a case decided within the meaning of section 115, C.P.C. and as such it is not revisable. According to the opposite party, the revision may be dismissed as not maintainable.;