Wanchoo, C. J. - (1.) THE following point has been referred to this Bench for decision; " Whether where it is open to a party to raise a ground of appeal under Section 105, Civil P. C. from the final decree or order with respect to any order which has been passed during the pendency of the case, it should be held that an appeal from that order lies to the High Court in the meaning of the term "in which no appeal lies thereto" appearing in Section 115, Civil P. C. "
(2.) THE facts, which have led to this reference, may be very briefly set out. THEre was ft suit in the Court of the Additional Civil Judge, Jaipur City, in which the defendant, who is the applicant in revision, raised the plea that the custom of pre-emption being contrary to the provisions of Article 19 (1) (f) of the Constitution of India, should not be given effect to by the Courts. THE Additional Civil Judge heard arguments and decided the issue against the defendant and ordered the suit to proceed. THEreupon, the defendant came in revision to this Court. This revision came up for hearing on 7-10-1952 before a Bench at Jaipur, In the meantime, another Bench of this Court, to which I was a party, decided in -- 'pyarchand v. Dungarsingh', AIR 1952 Raj 90 (A) that before a revision is competent in this Court, it has to be shown "that no appeal lies from that order to the High Court whether directly or indirectly. If there is a direct appeal to the High Court, namely a first appeal, the revision will not foe competent. Even if there is an indirect appeal, namely a second appeal or the order in question can be taken in either first or second appeal to the High, Court by taking a ground of appeal under Section 105, the High Court will not be competent to entertain a revision. " As the order, which was being called in, question in revision could clearly be attacked by taking a ground of appeal under Section 105, Civil P. C. from the decree in the suit, it was urged before the Bench that the revision was incompetent and should be dismissed on that ground. Mr. Bhandari appearing for the applicant however urged that the view taken in 'pyarchand's case (A)' was not in one with the decisions of other High Courts in India, & should be reconsidered, as the point involved was of considerable importance. Thereupon, the Bench made a reference in terms which I have set out above. Before I consider the terms of the section and the interpretation to be placed on them, I think it desirable to set out the history of Section 115, as that will help in determining the meaning to be given to the words now in dispute. The Civil Procedure Code of 1859 did not contain any provision for the exercise of revisional powers by the High Court. No order, therefore, which was not open to appeal directly or indirectly, and which could not be challenged under the provisions corresponding to the present Section 105, could be looked into by the High Court, either because it could not come before it at all or even if it did, it could not be so challenged. It was perhaps felt that the absence of such power precluded the High Court from looking into the correctness of a number of orders, which, though of importance, could not be challenged under the provisions corresponding to the present Section 105. So by Section 35 of Act 23 of 1861 the Sudder Courts were empowered to call for the records of any case decided in appeal by a Subordinate Court, and in which no further appeal lay, and revise the decision when the subordinate court appeared to have exercised a jurisdiction not vested in it. This power, however, did not also seem to be sufficient for it only enabled the High Courts to send for cases decided by the appellate courts. There remained however many orders passed by trial courts which could not be challenged directly or indirectly in appeal to the High Court, and no revision was possible by the High Court with respect to these orders. Consequently Section 622 was introduced in the Civil Procedure Code of 1877, which was more or less in the same terms as the present Section 115 except that Clause (c) did not appear therein. Later, a provision analogous to Clause (c), as it now exists was added in 1879. It was now open to the High Court to revise any order which would not come before it in appeal directly or indirectly provided the other terms of Section 622 were complied with. This history clearly shows that the intention of the legislature was to give power to the High Courts, which was in the nature of superintendence over the subordinate courts, even though the particular order passed by the subordinate court would not come before the High Courts directly or indirectly in appeal. It is with this back ground that we have to interpret the actual words used in Section 115, the relevant part of which is as follows : " The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto. " I lay particular emphasis on the word "in" used in the phrase 'in which no appeal lies thereto'. Mr. Bhandari in substance contends that what Section 115 provides is that if there is no appeal (whether first or second) to the High Court from the particular order in question the order would be revisable under Section 115. To put it otherwise, every order, which is not appealable upto the High Court under the provisions of the Code, would be revisable under Section 115, if the other conditions mentioned in that section are complied with. I must say that if that was the intention of the legislature, it would not have used the word "in", as the word generally used in the Code in connection with appeals is "from". Section 96, which provides for appeals from decrees, says that "an appeal shall lie from every decree passed by any court etc. etc. " Section 100, which provides for second appeals, says that "an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to a High Court etc. , etc. " Section 104, which provides for appeals from orders, says that "an appeal shall lie from the following orders etc. , etc. " Section 109, which provides for appeals to the Supreme Court, says that "an appeal shall lie to the Supreme Court from any judgment, decree or final order passed by the High Court etc. , etc. " If, therefore, the intention of the legislature was that a revision should lie from every decree or order from which no appeal was provided up to the High Court under Civil P. C. , I should have found the same word "from" used in Section 115 also. Instead however, the word used is "in", the actual phrase being "in which no appeal lies thereto", and not "from which no appeal lies, thereto". The legislature, therefore, must have intended something different when it used the word 'in' and not the word, 'from'. Mr. Bhandari urges that even if the legislature intended something different by using the word 'in,' it could only have intended that the High Court should look at the record as it stood on the date on which the order in question was passed, and if any appeal lay to the High Court on the record as it stood on that date, revision would be incompetent. But if no appeal lay to the High Court directly or indirectly on the record as it stood on the date when the order in question was passed, revision would be competent. This argument in my opinion, puts in slightly different words the same thing, unless it means that if there is any prior order which could be taken in appeal upto the High Court the latter order would not be revisable. It would then mean that the revisability of an order would depend upon whether there was any appealable order from which a first or second appeal could lie to the High Court on the record on the date of the order in question. I do not think, however, that it could have been the intention of the legislature to make the later order depend upon the appeal-ability or otherwise of some earlier order, for, it may be that the earlier order might have been already taken in first or second appeal to the High Court and there would then be no opportunity for the High Court to consider the later order. To my mind, therefore, the intention could only have been, by using the word "in"" and not the word "from" in this phrase, that the order in question should not be one which would come for consideration before the High Court in any form in any appeal that may reach the High Court in the suit or proceeding in which the order was passed. It is easy to understand that the revisability of the order was made to depend upon whether the order would reach the High Court in a first or second appeal, and could be questioned there by means of a ground under Section 105. If it was so, the legislature could not have intended that the High Court should use its extraordinary power under Section 115 at an intermediate stage. The words "in which" in the phrase 'in which no appeal lies thereto' qualify the word 'case'. The word 'case' has been interpreted in 'pyarchand's case (A)' as referring to the whole suit or proceeding, or to a part of a suit or proceeding. But whether the word 'case' refers to the whole suit or proceeding, or to a part of the suit or proceeding, the words 'in which' qualify the words 'suit or proceeding' which may be substituted for the word 'case'. Making the substitution, the section would read like this : " The High Court may call for the record of any suit or proceeding or part of a suit or proceeding which has been decided by any court subordinate to such High Court and in which (suit or proceeding) no appeal lies. " Therefore, the revisability of the order depends on whether an appeal lies in the suit or proceeding. If an appeal lies in the suit or proceeding, and if the order in question can be challenged in the appeal, whether it be first or second appeal, no revision would be competent to the High Court. It is only when the order in question cannot be challenged at all, in first or second appeal, and even by way of a ground under Section 105, that it can be said that no appeal lies to the High Court, and it should, therefore, exercise its extraordinary jurisdiction under Section 115 to look into the correct-ness of the order, as required by Clauses (a), (b) and (c) of the section. It was urged before the Bench which made the reference, and before this Bench also that the decision in 'pyarchand's case (A)' was not in line with the decisions given by other High Courts in India. This aspect was considered by me in 'pyarchand's case (A)', and it may be admitted that there is no definite decision by the High Courts in India going to the same extent as the decision in 'pyarchand's case (A)'; but as I pointed out in that case, some High Courts had almost come to the same conclusion which was arrived at in 'pyarchand's case (A)', but did not actually take it. It is not necessary for me to repeat what I have already said in 'pyarchand's case (A)'. But the more I consider it the more I feel that that decision is correct on the interpretation of the phrase 'in which no appeal lies thereto' appearing in Section 115.
(3.) BEFORE I deal with the cases cited by Mr. Bhandari and Mr. Chiranjilal, I should like to refer to some older decisions of various High Courts in India as to the meaning to be attached to this phrase. Learned Judges of those times were nearer the date when this particular section came into existence, and their opinion as to its meaning would be of great value. In -- 'motilal Kashibhai v. Nana', 18 Bom 35 (B), Sargent C. J. considered the scope of Section 622 and remarked as follows: " The expression "case" in Section 622 of the Code of Civil Procedure may be, as stated by the Court in -- 'dhapi v. Ram Pershad', 14 Cal 768 (C), wide enough to include an interlocutory order. But a word of such general import must be controlled by due regard to the purpose with which Section 622 was framed. This, it cannot be doubted, was to enable a party to a suit to get a decision or order of a lower court rectified by the High Court when there would otherwise be no remedy. In the case of those interlocutory orders (such as the present one), against which no immediate appeal lies, a remedy is still supplied by Section 591 (which is equal to Section 105 now), which provides that the order may be made ground of objection in the appeal against the final decree. " The learned Chief Justice thus made it clear that revision would only lie against those orders which could not be challenged under Section 105 in appeal which would finally lie from the decree passed in the suit. It may be added that the question whether the particular order in that case was open to challenge under Section 105 is a different matter altogether; but the principle, which was laid down in that case, is the same which was laid down in 'pyarchand's case (A)'. In -- 'chattar Singh v. Lekhraj Singh', 5 All 293 (D), Justice Oldfield considered the scope of Section 622 in these words : " We are of opinion that we have no power of revision under Section 622. The contention that the proceeding for arbitration is a decided case in which no appeal lies within the meaning of the, section, and therefore open to revision under Section 622, is not tenable. The proceeding is of an interlocutory character only, made in the course of a suit; it is part of a case which is still undecided, and in which an appeal lies from the final decree. It was hot the intention to allow of revision of interlocutory proceedings, in the course of a suit, which do not determine it. The order, which is the subject of this application, wilt be open to revision by appeal from the final decree in the suit, and even if Section 622 allowed of it, it would be highly inexpedient for us to interfere at this stage of the case. " The decision in this case rested on two grounds, namely (i) that an interlocutory order was not a case decided, a view which the Allahabad High Court has consistently held, and with which, with, all respect I have not agreed in my judgment in 'pyarchand's case (A)', and (ii) that the order in question will be open to revision by appeal from, the final decree in the suit. The next case is -- 'in re Nizam of Hyderabad', 9 Mad 256 (E ). In this case, Muttu-sami Ayyar. J. considered the scope of Section 622. The revision was directed against two interlocutory orders, and the learned Judge observed as follows: " No appeal is allowed by Section 588 from either of these orders whilst Section 591 (now equal to Section 105) prescribes the course to be followed in regard to defective interlocutory orders, i do not consider that Section 622 is applicable, to them and it presupposes a decision or an order in the nature of a decree and that no other remedy is provided for specially by the Code. " Here again, the learned Judge clearly lays down that Section 591 which is equivalent now to Section 105, prescribes the course to be followed in regard to defective interlocutory orders. ;