P.K.BALASUBRAMANYAN, J. - (1.) THIS revision is by the plaintiff in a suit which is essentially one for affirmation or recognition of the family settlement imposed on the family by the propositus. On the filing of the suit, various members of the family impleaded as defendants appeared. Except defendant No. 3, ail the other defendants along with the plaintiff made an application requesting the Court to proceed in terms of Order XV, Rule 1 of the Code of Civil Procedure and to pronounce a judgment. The Court below found that since defendant No. 3 had not joined the petition, it was not possible to proceed in terms of Order XV, Rule 1 of the Code and to pronounce a judgment in the suit. It declined the prayer. It is this decision of the Court below that is challenged in this revision.
(2.) SINCE obviously if I were to interfere in exercise of my jurisdiction under Section 115 of the Code of Civil Procedure it will result in the suit being finally disposed of it cannot be said that revision is not maintainable under Section 115 of the Code as it now stands. But then, the question is whether the Court below has committed any error justifying interference under Sec.115 of the Code. Order XV, Rule 1 of the Code of Civil Procedure can be invoked only when at the first hearing of a suit, it appears to the Court that the parties are not at issue on any question of law or of fact, and the Court can proceed to judgment. In the case on hand, defendant No. 3 had not joined the petition filed on behalf of the plaintiff and the other defendants. It is no doubt true that he had also not filed a written statement in the suit and may be, the Court could proceed against him in terms of Order VIII, Rule 10 or ex parte in terms of Order IX, Rule 11 of the Code, if the situation warranted. But that is different from saying that the Court could proceed to pronounce judgment in terms of Order XV, Rule 1 of the Code of Civil Procedure when it is not disclosed in his presence that the parties are not at issue on any question of law or of fact. In this situation, in my view, the Court below acted properly in refusing to proceed to judgment in terms of Order XV, Rule 1 of the Code of Civil Procedure. I cannot say that the Court below has committed any error of jurisdiction or has committed any material irregularity in exercise of its jurisdiction justifying interference by this Court.
(3.) I dismiss the revision.;