N.K. Bhattacharyya, J. - (1.) Heard the submission of the ld. Advocate for the petitioners Mr. K. S. Ahmed and the Ld. Advocate for the opposite party Mr. Mrinal Kanti Das being assisted by Mr. Soumabrata Mukherjee and Ms. Madhuparna Pyne. Cons idered the materials on record.
(2.) by the instant application under Article 227 of the Constitution of India, the plaintiff-petitioners have challenged order No. 2 dated 18th May, 1993, order No. 23 dated 29-3-93, order No. 44 dated 1-6-94, and order No. 14, which will actually be order No. 52 dated 15-7-94, passed in Title Suit No. 95/93 by the learned Munsif, 2nd Court Krishnanagore, Nadia. The short background of the case is that on an allegation that the opp. parties herein being opp. party Nos. 1 to 9, verbally agreed to transfer the land in question, received a part of the consideration money and made over possession of the same to the plaintiffs. Prayer has been made for permanent injunction in the form of status-quo restraining the respondents from interfering and/or disturbing the present state of affairs of the suit land by maintaining status-quo until the right to sue for specific performance of contract would arise and/or until decision of the D. R. Appeal has been passed. In that suit, the plaintiffs made an application under Order 39, Rule 1 and 2 and prayed for ad-interim injunction which was refused by the learned trial court by order No. 2 dated 18th May, 1993. The order was appealable but no appeal was taken out under Order 43 Rule 1(r) of the Civil Procedure Code instead, on 15th June, 1993, the plaintiffs filed an application under Section 151 praying for an order of status-quo. It was moved on 16th June, 1993, as it will be apparent from order No. 9 dated 16.3.1993. On 5.7.93, the defendant No. 4 by filing a written objection, objected to the hearing of the petition under Section 151, as filed by the plaintiffs. That will be apparent from order No. 13 dated 5-7-93. Both the matters were fixed for hearing on subsequent dates but due to adjournments, the matter could not be heard out till 29-9-93. On that date after hearing both the sides, the objection raised by defendant No. 4 regarding the hearing of the application under Section 151 of the plaintiffs was rejected. The application under Section 151, was heard and rejected on contest by one order being order No. 23 dated 29-9-93. In rejecting the petition under Section 151, the learned Munsif, inter alia, held that the injunction has already been refused meaning thereby that ad-interim injunction has not been granted and that the case itself is for permanent injunction. So, the Ld. Munsif refused to pass any order of status-quo and rejected the petition under Section 151 of the Civil Procedure Code. Be that as it may, the injunction petition was taken up for hearing on 1-6-94, but could not be heard as time was taken. Thereafter the matter was heard on 15-7-94, in presence of both the parties. The learned Munsif rejected the petition under Order 39 Rule 1 and 2 of the plaintiff on the ground that the matter involved is the subject matter of suit itself. This order also, that is, order No. 14, which should be Order No. 52 dated 15-7- 94, is also an appealable order under Order 43, Rule 1(r) of the Civil Procedure Code. No such appeal has been taken by the plaintiffs. Now by this revision, the plaintiffs, have challenged the order regarding refusal of the interim order passed on 18-5-93, by Order No. 2. Order dated 29-3-93 whereby the application under Section 151 was dismissed by order No. 23, the order of adjournment on 1-6-94 by order No. 44, and the order refusing injunction by rejecting the petition under Order 39, Rule 1 and 2 dated 15-7-93, being Order No. 14, which should be Order No. 52, I have already pointed out that the order of refusal of the ad-interim order is an appealable order. But without preferring any appeal the plaintiffs have filed an application under Section 151 of the Civil Procedure Code. There is a specific provision for challenging the order of refusal of ad-interim order of injunction. But without resorting to it, the petitioner has taken resort to Section 151. It is settled law that when there is a specific provision for appeal for doing a thing, Section 151, cannot be resorted to by passing that provision. Similarly the order refusing injunction by rejecting the petition under Order 39 Rule 1 and 2 , that order dated 15-7- 94, is also an appealable order. But the plaintiffs have preferred no appeal to challenge the order as contemplated under Order 43 Rule 1(r) of the Civil Procedure Code. In this connection Mr. Ahmed relied on the case of Bimal Sahoo v, Gouri Rani Pahari, reported in AIR 1991 Calcutta 120 . According to Mr. Ahmed, even if there is a provision in the Civil Procedure Code to challenge an order in appeal, by passing that Article 227 of the Constitution of India can be resorted. In other words when there is a provision of appeal, by passing the provision of appeal, Section 151 of the Civil Procedure Code can be resorted. The Supreme Court in the case of Manoharlal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, reported in AIR 1962 Supreme Court 527 , has depricated it. There is also another decision of the Supreme Court in the case of Padam Sen v. State of U. P. reported in AIR 1961 Supreme Court 218 . Unfortunately, those decisions were not placed before the Single Bench decision in the case of Bimal Sahoo (supra) and the Learned Single Judge has not the occasion to consider the matters and the decision that has been referred to is not a good law. Even in subsequent decision, the Supreme Court has upheld the view that where there is a specific direction in the Civil Procedure Code. In order to bypass the same one cannot resort to other provision. This is a settled principle of a law and this cannot be unsettled unless there is any subsequent decision from the Apex Court. Article 227 of the Constitution of India can be resorted to in exceptional circumstances not contemplated under Section 115 of the Civil Procedure Code. But even then there is a time limit. That cannot go for an infinity. Where there is any time limit that should be followed as far as practicable for the purpose of moving the revision under other provision. If there is any delay beyond that it will need to be explained in the petition itself. But in the instant case, there is no such explanation. No indication has been given in the petition as to the delay in moving the revisional application under Article 227 of the Constitution of India. As such, I do not find any merit in the revisional application. The revisional application, therefore, stands dismissed.
(3.) All interim orders are vacated.;