- (1.) D. C. Srivastava, J. This revision under Section 115 of the Code of Civil Procedure is directed against an order dated 19th February, 1996 of Smt. Sandhya Bhatt, XIVth Additional District Judge, Kanpur Nagar, on an application under Section 151 of the Code of Civil Procedure directing that defendants 11 to 14 are entitled to withdraw the amount deposited by the plaintiff in the name of defendant No. 1 on furnish ing personal security for the entire amount in the court and passing consequential direction to the Union Bank of India and the State Bank of India, Lal Imli Branch, Kanpur.
(2.) THE brief facts are that Original Suit No. 104 of 1987 was filed by the plaintiff against the defendants seeking relief of dec laration that the property of premises No. 16/81, Civil Lines, Kanpur vested with the plaintiff, National Textile Corporation and for permanent injunction restraining the defendants from dispossessing the plaintiff from the above premises. An application for interim injunction was moved by the plain tiff. Ex pane injunction was granted in favour of the plaintiff, but after hearing on merits the application for interim injunc tion was rejected First Appeal From Order No. 177 of 1987 was filed in this Court, which was dismissed. THEreafter Civil Ap peal No. 7045 of 1987 was filed in the Supreme Court. While admitting Special Leave Petition, the Supreme Court passed the following orders on 11th July, 1987: "the possession of the petitioner will not be disturbed for a period of one week from the premises No. 16/82, Civil Lines, 'shrubery', Kanpur. Matter to come upon 13-7-1987. " Another order was passed by the Supreme Court on 13th July, 1987, which is quoted below: "so far as the main building alongwith servant quarters, if any at premises No. 16/81 Civil Lines, Kanpur is concerned status quo as to provision will continue but so far as rest of portion of premises is concerned we are not making any observations. This order is being passed in place of the order passed by Hon'ble Vacation Judge on 11th July, 1987. If there are any sheds in the premises, status quo as to possession will continue until disposal of this matter finally in respect of the occupation of the petitioner, under the sheds. This continuance of the possessions as mentioned above is without prejudice to the rights and con tentions of the parties and as regards title of the parties in respect of the premises in question, NTC will deposit with the first respondent a sum of Rs. 25,000 p. m. on or before 10th of every month, subject to adjustments, to be made by the final order commencing from 1st of Aug. , 1987 this matter will be listed alongwith SLP 4826 of 87 and other connected matters. 4, Subsequently the Special Leave Petition was finally disposed of by the Supreme Court vide order dated 12th July, 1988, which is quoted below: "after hearing learned counsel for the parties we direct that while the petitioner may con tinue in possession of the portion of the property to which the Swadeshi Cotton Mills, Co. Ltd. has been held entitled under the terms of the decree of this court dated 17th Dec,, 1985 in Civil Appeal No. 1242 of 1977 the said decree shall continue to operate in its other particulars subject, however, to any orders which may be passed in future by the trial court in Suit No, 104 of 1987 in the interest of justice and in order to preserve the rights of the respective parties during the pendency of the suit. In the event of a party demolishing a construction forming part of the property allotted to it under the decree of this court, such party will restore the property to its original condition by raising an appropriate construction if it following from the decision in the Suit that the party concerned was not entitled to effect such demolition. We direct further that as regards the term of the order dated 13th July, 1987 made by this court directing petitioner to deposit a sum of Rs. 25,000 per month the petitioner shall make such deposit in a schedule bank to the credit of an interest earning account opened in the name of the first respon dent, but it will not be opened to the first respon dent to withdraw any amount from such account without the prior order of the court. " 6. The Special Leave Petition is dis posed of accordingly. 6. In pursuance of the above orders, the plaintiff-revisionist was depositing a sum of Rs. 25,000 per month in the bank. During the pendency of the suit the proper ty was transferred by the defendant No. 1 in favour of defendants No. 11 to 14 with all consequential benefits through registered sale-deeds. The suit was finally dismissed on merits on 25th July, 1995. Against this order First Appeal No. 549 of 1995 N. T. C. (U. P.) Ltd, v. M/s Swadeshi Cotton Mills Co. Ltd. and others was filed in this Court which is pending admission. After dismissal of the suit, defendants No. 11 to 14 who are op posite-parties, No. 2 to 5 of this revision, applied in the trial court for permission to withdraw the amount. The application of the revisionist for not permitting withdrawal of the amount was rejected by the trial court on 28th July, 1995 through the following order: "the judgment has been pronounced on 25-7-95. No direction for payment has been made in the judgment. The suit has been dismissed. The application is not maintainable. " 7. Thereafter the impugned order was passed permitting withdrawl of the amount subject to furnishing personal security for the amount in the court. 8. A preliminary objection was raised from the side of the opposite-parties that the revision is not maintainable. The ground was that because the suit has been decided the impugned order does not arise out of any suit, hence the revision against such order is not maintainable. It may, how ever, be mentioned that this contention is not acceptable because a proceeding under Section 151 of the Code of Civil Procedure is a proceeding and any final order passed in such proceeding is revisable. The word "proceeding" was added through the U. P. Amendment to Section 115 of the Code of Civil Procedure vide Section 3 of U,p. Amendment Act of 1978. Consequently it is incorrect to say and hold that the revisional jurisdiction can be exercised only in respect of an order passed and deciding a case between the parties, arising out of the suit. A final decision in every proceedings other than original suits is also amenable to revisional jurisdiction under Section 115 of the Code of Civil Procedure in view of this amendment. 9. However, the revision is not main tainable for other reasons. The first is that through the impugned order the court below has not decided any case between the parties nor it has decided any rights or sub stantial rights of the parties which is evident from paragraph 2 of para 3 of the impugned order in which the lower court has observed as follows: "in the present application no substantive rights are being decided. What is required, is pass ing of consequential order which will be a follow up action. In view of the direction of the Hon'ble Supreme Court regarding the withdrawal of the amount which has been deposited by the plaintiff. " 10. It is, therefore, clear that while passing the impugned order the court below was conscious that it was not deciding any rights of the parties, but was passing a consequential and follow up order in the light of the directions of the Supreme Court quoted above. If the impugned order is not a final order deciding any case between the parties, the revision will not be maintainable and it cannot be maintained simply because in herent jurisdiction was exercised by the court below under Section 151 of the Code of Civil Procedure. Thus since the im pugned order has not finally adjudicated upon the rights and obligations of the par ties in the impugned order, it is aot a final order, hence no revision lies and also no revision can lie against an interlocutory order of this nature. 11. In addition to this, revisional inter ference against the impugned order is not permissible in view of provisos (a) and (b) of Section 115 of the Code of Civil Procedure inasmuch as if the order under revision is allowed to stand it would not finally dispose of the proceedings or the suit and that if it is allowed to stand, it would occasion failure of justice or cause irreparable injury to the revisionist against whom the order has been made. The court below has made adequate safeguard in its order by directing opposite- parties No, 2 to 5 to furnish personal security, which implies that in case the revisionist succeeds in the first appeal the amount can be refunded in restitution proceedings under Section 144 of the Code of Civil Procedure and also the person who gave personal security could be proceeded with. 12. For the aforesaid reason, the revision is not maintainable. 13. Since the learned counsel for the parties were heard on the merits of this revision, I think the merits of the revision should also be considered. Normally after holding that the revision is not main tainable, the revision should not be dis posed of on merits. But since the parties counsel were heard the revision should not be disposed of only on technical grounds. 14. Coming to the merits of the revision, it was contended vehemently by the learned counsel for the revisionist that the word "court" in the order of Supreme Court dated 12th July, 1988 was incorrectly interpreted by the lower court. In the order dater 12th July, 1988, quoted above, the relevant portion for appreciating this argu ment is as follows: ". . . . . . . . . but it will not be open to the first respondent to withdraw any amount from such account without prior order of the court. The Special Leave Petition is disposed of accordingly. " 15. Learned counsel for the revisionist contended that the word court means the Supreme Court and not the trial court. In my view the interpretation given by the lower court is correct. Further in revisional jurisdiction, the revisional court will not interfere on erroneous findings on ques tions of law and fact or on erroneous inter pretation of an order of the court. If the court had jurisdiction to pass the order and it did not after application of mind, the revisional interference will hardly be jus tified. 16. It may, however, be mentioned that the interpretation of the word 'court' given by the lower court does not appear to be incorrect. Once the Special Leave Petition arising out of interim injunction, the matter was finally disposed of by the Supreme Court, it can hardly be appreciated that for permission to seek withdrawal of the amount, the concerned parties should have again approached the Supreme Court spe cially when Special Leave Petition was dis posed of. After careful consideration of the various orders of the Supreme Court, quoted above, it is clear that the Supreme Court intended that the amount can be per mitted to be withdrawn by the lower court subject to final order and final order means final order in the suit. The suit has already been dismissed. Consequently, the im pugned order does not suffer from any defect of jurisdiction. If there is no defect of jurisdiction, then the so-called interpreta tion cannot be interfered with in this revision. 17. Learned counsel for the revisionist then contended that because First Appeal has already been filed, which is pending in this Court, it was not proper for the lower court to permit withdrawal of the amount. Annexure 'c. A.-'i' is the copy of stay order dated 15th November, 1995 of this Court passed in First Appeal No. 549 of 1995 - National Textile Corporation (U. P) Ltd. v. Swadeshi Cotton Mills Co. Ltd. While entertaining the appeal for admission, this Court issued notices. Only limited stay order protecting dispossession of the appellant was passed and that too on the undertaking of respondents No. 11 to 14. No interim stay order was granted that the amount deposited by the appellant shall not be paid to respondents No. 11 to 14. If this was so and if this fact was already taken into consideration by the lower court while passing the impugned order, it cannot be said that the lower court exceeded its jurisdiction in passing the impugned order. 18. Moreover, if the appeal succeeds the amount can be refunded to the appellant either under the orders of the appellate court or through the proceedings under Section 144 of the Code of Civil Procedure. 19. It was next contended that the amount deposited at the rate of Rs. 25,000 was ad hoc amount and unless the court adjudicated the actual profit, the amount cannot be permitted to be withdrawn. The lower courv in the impugned order observed that the amount deposited was for the use and occupation of the property by the plain tiff and property (sic) the amount of damages for the occupation of the property in suit. It was not a suit for possession rather a suit for injunction seeking a restraint order against dispossession of the plaintiff. Even in terms of the order of the Supreme Court, the amount could be paid subject to final order of adjustment. If while dismiss ing the suit no other order was passed, the amount was rightly held to be payable to the defendants No. 11 to 14. 20. The next contention has been that there is collusion between the respondent No. 1 and the remaining respondents and for this reason respondent No. 1 for whose benefit the amount was deposited has en dorsed no objection. In this revision no find ing of fact on this disputed question can be given because no such finding was given by the lower court in the impugned order. 21. It was next contended that the respondents No. 2 to 5 are purchasers during the pendency of the suit and since there is no specific mention in the transfer-deed, namely, the sale-deed in favour of respondents No. 2 to 5 entitling them to receive the aforesaid deposit, hence also the impugned order is illegal. This contention also cannot be accepted because photostat copies of the sale-deeds in favour of respondents No. 2 to 5 have been brought on record through supplementary affidavit. "the vendee shall also be liable for all conse quences arising out of the aforesaid suit and similarly he shall also be entitled to all the benefits and profits to which the vendors may be entitled. " Paragraph 13 of the sale-deed contains reci tal about entitlement of deposit of Rs. 25,000 per month in pursuance of the order of the Supreme Court and the relevant por tion can be quoted as under: "national Textile Corporation (U. P.) Ltd. are depositing a sum of Rs. 25,000 per month in an interest earning account of State Bank of India, Lal Imli Branch, Kanpur and this sum the defen dant Swadeshi Cotton Mills Company is entitled to receive, and now of the said money, the vendee shall be entitled to receive l/5th (one fifth) share from the date of said amount is being deposited and vendors shall not prefer any claim in regard to the said sum. " There is thus specific mention in the sale-deed entitling defendants No. 11 to 14 to receive the above deposit. 22. The court below has taken into account the factum of dismissal of the suit, the direction of the Supreme Court, institu tion of first appeal and limited stay order passed by this Court in the first appeal and then the impugned order was passed under these circumstances the impugned order suffers from no defect of jurisdiction il legality or irregularity. 23. In the result the revision is bound to fail. It is accordingly dismissed. Revision dismissed. .;