SHIVALIK POULTRY FORM Vs. INDIAN BANK

JUDGEMENT

(1.) This revision petition is directed against the order of the trial Court dated January 15, 1985, whereby the application filed on behalf of the defendant - petitioner under Order 37, rule 3(5) of the Civil Procedure Code (hereinafter called the Code), for leave to defend the suit was dismissed and the plaintiff respondent's suit was decreed for the recovery of Rs. 4,15,945.50, under Order 37 of the Code.

(2.) Shorn of unnecessary details, in paragraph 3 of the plaint, it was inter alia stated that defendant No. 6 created equitable mortgage over the agricultural land, jointly owned by him alongwith his wife, defendant No. 4, in favour of the plaintiff to secure the due repayment of the credit facilities, sanctioned and granted by the plaintiff in the name of defendant No. 1, i.e., the petitioner. Not only that, in the prayer clauses, (e) and (f), of the plaint, it was also stated inter alia that a preliminary decree in respect of the immovable property, equitably mortgaged with the plaintiff, be passed against defendant Nos. 4 and 6. On notice, the defendant appeared and filed the application under Order 37, rule 3(5) of the Code. The said application was contested on behalf of the plaintfif. The learned trial Court dismissed the application with the observations that in fact the suit of the plaintiff was mainly based on the various joint and serval demand promissory notes executed by the defendants and also on the basis of the various agreements hypothecating the livestock, etc. According to it, the suit was not governed by Order 34 of the Code, as argued by the learned counsel for the defendants. The objection raised on behalf of the defendants that the Court had no territorial jurisdiction to entertain the suit was also repelled. Ultimately, as observed earlier, the said application filed on behalf of the defendant was dismissed and the plaintiff's suti was decreed by the impugned order. Dissatisfied with the same, the defendant has come up in revision to this Court.

(3.) A preliminary objection has been raised on behalf of the plaintiff that since the suit has been decreed under Order 37 of the Code, no revision petition is competent against the order under challenge. The only remedy, according to it, was to fle an appeal against it. In support of the contention, reliance was placed on Khem Chand v. Hari Sngh, 1979 AIR(Del) 7On the other hand, the learned counsel for the petitioner relied upon the Division Bench judgment of the Delhi High Court in S.K. Bhardwaj v. M.L. Gupta, 1977 AIR(Del) 226and an unreported judgment of this Court in Civil Revision Petition No. 218 of 1985 (The Chandigarh State Co-operative Bank Ltd. v. The State Bank of India, C.R. 218 of 1975), decided on March 27, 1985, to contend that the revision petition was maintainable even if the trial Court had decreed the plaintiff's suit under Order 37 of the Code.