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Case Number

Civil Revision No. 1492 of 2000

Attorney(S)

R.P Agrawal, Senior Advocate with L. Pandey
Ku. K. Mehta
Ajay Mishra

Judges

S.P Khare, J.

Acts

CIVIL PROCEDURE CODE AMENDMENT ACT 1999
Indian Succession Act or the Arbitration Act.
Section 115 of the Code of Civil Procedure.
Section 115 (by the Amendment Act, 1976)
Section 104 or Order 43 Rule 1, CPC
SECTION 39 ARBITRATION ACT
Sub-section (1) of Section 115.
Sub-section (2) of Section 115
Order 40 Rules 1 and 4, CPC
Order 39 Rules 1 and 2, CPC
Section 115 of the Code
Order 43 Rule 1 (r), CPC
Order 43 Rule 1, CPC
Order 38 Rules 2, 3
Order 39 Rules 1

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Smart Summary

Structured Summary of the Opinion (Revision under Section 115, CPC)

Factual and Procedural Background

This matter is a revision petition under Section 115 of the Code of Civil Procedure (CPC) filed by the plaintiffs. The revision challenges an order by which the plaintiffs' appeal under Order 43 Rule 1 CPC — that sought to challenge the trial court's rejection of their application for a temporary injunction under Order 39 Rules 1 and 2 CPC — was dismissed. A preliminary objection was raised by respondent No. 3 asserting that the revision is not maintainable due to the proviso to Section 115(1) CPC; respondent No. 3 relied specifically on the decision in Sawal Singh v. Smt. Ramsakhi (2002 (II) MPJR 169). The Court heard extensive arguments on this maintainability point from multiple senior counsel before addressing the legal question.

Legal Issues Presented

Whether a final appellate order passed in an appeal under Section 104 or Order 43 Rule 1 CPC is an "order in the course of a suit" within the meaning of the proviso to Section 115(1) CPC, and therefore whether a revision against such an appellate order is barred by that proviso.

Arguments of the Parties

Respondent No. 3's Argument

The revision is not maintainable under the proviso to Section 115(1) CPC; reliance is placed on the decision in Sawal Singh v. Smt. Ramsakhi (2002 (II) MPJR 169) to support the contention that the proviso bars revision in the circumstances of the present petition.

The opinion records that multiple senior counsel addressed the Court on the point, but it does not contain a detailed, itemized account of the plaintiffs' or other parties' separate legal arguments beyond the preliminary objection described above.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Sawal Singh v. Smt. Ramsakhi, 2002(4) M.P.H.T. 200 = 2002 (II) MPJR 169	The proviso to Section 115(1) deals with interlocutory/interim orders passed "in the course of a suit" and restricts revisional jurisdiction of the High Court over such interim orders (except where such order, if made in favour of the applicant, would finally dispose of the suit).	The Court considered this decision at length and acknowledged that its para 15 conclusions form the ratio in that case. However, the Court held that the decision is not an authority on the specific question whether a final appellate order under Order 43 Rule 1 CPC is an "order in the course of a suit"; the opinion distinguishes the present question from what was decided in Sawal Singh.
Phool Singh v. Mavla, 2002(3) M.P.H.T. 383 = 2002(11) MPJR 157	After reference to the Malimath Committee and legislative materials, it was held that the scope of interference against interlocutory orders has been restricted by the proviso.	Cited to support the proposition that the Proviso envisages interim orders only and that interference against interlocutory orders is limited.
Mahadeo v. Pune Municipal Corporation, (1995) 3 SCC 33	The bar under Section 115(2) CPC prevents exercise of revisional power where a right of appeal exists to the High Court or a subordinate court; but it is not a bar to exercise revisional power under Section 115(1) against an appellate order.	Invoked to show that Section 115(2) does not preclude revisional interference with appellate orders and to support the proposition that revision against appellate orders can be permissible.
Kadiyala Rama Rao v. Gutala Kahna Rao, (2000) 3 SCC 87	The legislative change in Section 115 (Amendment Act, 1976) indicates that an order passed by a subordinate court in its appellate jurisdiction, if not appealable, would still fall within Section 115 and allow a revisional application.	Cited to support the proposition that revisional jurisdiction can extend to appellate orders where the statutory conditions of Section 115 are satisfied.
Shyam Sunder Agarwal & Co. v. Union of India, AIR 1996 SC 1321	A revisional application before the High Court against an appellate order under Section 39 of the Arbitration Act is maintainable; a special statutory provision of finality does not necessarily oust revisional powers under Section 115 CPC.	Used to show that even where a statute attaches finality to appellate orders, Section 115 revisional power may still be available and thus supports maintainability of revision against certain appellate orders.
Orient Paper Industries Ltd. v. State of Orissa, AIR 1991 SC 672	The binding part of a decision is its ratio; not every observation or what logically follows from observations is binding precedent.	Cited to justify that only the ratio of prior decisions is authoritative and to explain why the Court may distinguish other aspects or the manner of disposal in earlier cases (notably to distinguish Sawal Singh).
Executive Engineer v. N.C. Budharaj, (2001) 2 SCC 72	The ratio or the basis of reasons underlying a decision is distinct from the ultimate relief granted or the manner of disposal; observations beyond the ratio are not necessarily authoritative.	Cited to reinforce the distinction between a case's ratio and other observations; used to support distinguishing prior decisions on facts or aspects not forming the ratio.
State Financial Corporation v. Jagdamba Oil Mills, 2002 AIR SCW 500	Circumstantial flexibility in judicial reasoning: one additional or different fact may make a difference between conclusions in two cases; avoid blind reliance on earlier decisions.	Invoked to justify that differing facts or aspects in the present case permit a different conclusion from earlier decisions and to caution against automatic application of prior holdings beyond their ratio.

Court's Reasoning and Analysis

The Court conducted a textual and purposive analysis of the proviso to Section 115(1) CPC. Its reasoning unfolded in a series of explicit steps:

The Court observed that the word "order" appears three times in the proviso and that the same meaning must be ascribed to it in each place. It is indisputable, the Court held, that any "order made in the course of a suit" is an interim or interlocutory order because a suit commences with plaint and ends with judgment and decree; thus orders passed during the pendency are interim.
Drawing on authoritative commentary (Mulla) and earlier decisions (including Sawal Singh and Phool Singh), the Court concluded that the proviso is concerned with interlocutory/interim orders only — i.e., interlocutory orders made in the course of a suit or similar proceedings.
The Court then distinguished appealable from non-appealable orders. It noted that Section 115(2) already bars revisional power where an appeal lies against the impugned order; therefore the proviso should not be read to include appealable orders (since such orders are already covered by subsection (2)). Consequently, the word "order" in the proviso was interpreted to mean "interim non-appealable order."
Applying that interpretation, the Court reasoned that an appellate order passed in an appeal under Section 104 or Order 43 Rule 1 CPC cannot fall within the proviso's scope: the appellate order is a final appellate order in proceedings that are, in essence, appeal proceedings (the original order merges into the appellate order), and such final appellate orders are not "orders made in the course of a suit or other proceeding" as envisaged by the proviso.
The Court supplemented the textual analysis with a purposive consideration of Section 105(1) CPC: interlocutory orders that may affect the ultimate decision can be assailed in appeal; the proviso postpones the remedy to the appeal. However, a party cannot challenge an order passed in an appeal under Section 104/Order 43 Rule 1 in the appeal against the decree (i.e., the normal appeal against decree does not provide a remedy to attack such appellate interlocutory orders). Therefore, it could not have been the legislative intent to deprive parties of revision against final appellate orders under Section 104/Order 43 Rule 1 by including those orders within the proviso.
The Court relied on Supreme Court authorities (Mahadeo, Kadiyala Rama Rao, Shyam Sunder Agarwal & Co.) to support the proposition that revision under Section 115(1) is maintainable against final appellate orders if the statutory conditions for revision are satisfied, and that the proviso does not alter this position.
Finally, the Court addressed the precedential effect of earlier decisions (notably Sawal Singh), emphasizing that only the ratio of a decision is binding; observations beyond the ratio do not necessarily control a different question. The Court therefore distinguished earlier rulings on the particular question before it and concluded that those cases did not decide the precise issue now before the Court.

Holding and Implications

HOLDING: The final appellate order passed in an appeal under Section 104 or Order 43 Rule 1 CPC is not an "order in the course of a suit or other proceeding" within the meaning of the proviso to Section 115(1) CPC; accordingly, a revision against such a final appellate order is not barred by the proviso to Section 115(1), CPC.

Implications:

Direct effect: A party aggrieved by a final appellate order in appeals under Section 104 or Order 43 Rule 1 CPC may seek a revisional application under Section 115(1) CPC where the conditions of Section 115 are satisfied; such a revision is not automatically precluded by the proviso to Section 115(1).
The Court explicitly considered and distinguished earlier decisions (including Sawal Singh) and relied on Supreme Court authorities to support the maintainability of revision against appellate orders where appropriate. The opinion stresses that the ratio of prior cases governs their precedential effect and that differing factual or legal facets may permit a different conclusion.
The opinion confines its conclusion to the question addressed: it interprets the proviso as excluding final appellate orders under Section 104/Order 43 Rule 1 from the category of orders "in the course of a suit" for the purposes of the proviso. The Court's disposition identifies the direct consequence for maintainability of revision petitions in that context.

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Hanuman Datt And Others v. State Of M.P And Others

1. This is a revision by the plaintiffs under Section 115, CPC against the order by which their appeal under Order 43 Rule 1 (r), CPC challenging the order of the rejection of their application for temporary injunction under Order 39 Rules 1 and 2, CPC filed in the suit, has been dismissed.

2. A preliminary objection has been raised on behalf of the respondent No. 3 that the present revision is not maintainable in view of the proviso to Section 115(1), CPC. Reliance is placed by him on the decision of this Court in Sawal Singh v. Smt. Ramsakhi, 2002(4) M.P.H.T. 200 = 2002 (II) MPJR 169. This objection has been raised in several other revision petitions pending before this Court. Therefore, arguments were heard at length. Sarvashri Ravish Agrawal, Sr. Advocate, R.P. Agrawal, Sr. Advocate, R.P. Jain, R.S. Tiwari, P.D. Tiwari, Alok Aradhe and Ajay Mishra, Advocates have also addressed this Court on this point.

3. The proviso to Section 115(1), CPC reads as under:--

"Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings"

(Underlined by me)

4. The short question which arises in the present revision is whether the final appellate order passed in appeal under Section 104 or Order 43 Rule 1, CPC is an "order in the course of a suit" within the meaning of these words in the Proviso and therefore, a revision against such order would not be maintainable.

5. The aforesaid proviso has been considered in great detail in Sawal Singh v. Ram Sakhi, 2002(4) M.P.H.T. 200 = 2002(11) MPJR 169, and the following three conclusions have been drawn in para 15 which form the ratio of the decision :--

(a) The revisional jurisdiction under Section 115 of the Code is available against:

7. The word 'order' occurs thrice in the Proviso. It has to be ascribed the same meaning in all the three placed. It is indisputable that any order made "in the course of a suit" would be an interim or interlocutory order. The suit commences with the presentation of the plaint and ends with the judgment and the decree. Any order passed in the course of the suit during its pendency would be an interim order. The same would be the position in the case of "other proceeding" akin to that of a suit e.g. proceedings under the Indian Succession Act or the Arbitration Act. It is only the interim order in the course of a suit or other proceeding which is covered by the Proviso. The present Proviso was Proviso (a) before the Civil Procedure Code (Amendment) Act, 1999 and after the Amendment Act of 1976. Mulla in his Commentary on CPC 15th Edition Vol. I Page 824 has stated: "The proviso deals with interlocutory orders only". In Sawal Singh 's case also it has been unequivocally held in paras 9 and 10 that the effect of the amendment is that the "interim orders" which have been passed in the course of a suit or other proceeding the High Court will not exercise its revisional jurisdiction in respect of those orders. Similarly in Phool Singh v. Mavla, 2002(3) M.P.H.T. 383 = 2002(11) MPJR 157, it has been held after making a reference to the report of the Malimath Committee, the Statements of Objects and Reasons and the 'Notes on Clauses'; that the scope of interference against interlocutory order has been restricted. Therefore, it can be held without dilating further that the Proviso envisages interim orders only which have been made in the course of a suit or other proceeding.

8. The word 'order' used in the Proviso further covers non-appealable orders only. It does not cover appealable orders. There was already Sub-section (2) of Section 115 which provides that the High Court shall not, under this section, vary or reverse any decree or order "against which an appeal lies" either to the High Court or to any Court sub-ordinate thereto. The sub-section is mandatory and it prohibits the exercise of revisional power to vary or reverse an order which is appealable. There was already a legislative injunction against the exercise of revisional power against an appealable order. The revision against the appealable order was hit by Sub-section (2) and therefore the appealable order could not be included in the word "order" used in the Proviso in order to its being further hit by the Proviso. It follows that the word 'order' in the Proviso does not include in its ambit appealable orders.

9. Thus, the meaning of the word 'order' which has been used three times in the Proviso is "interim non-appealable order". In respect of such an order an exception has been carved out in the Proviso and that exception is that if this order had been made in favour of the party applying for revision it would have finally disposed of the suit or other proceedings. The interim non-appealable orders coming within the exception would be revisable by the High Court. Such orders may be on the question of limitation, jurisdiction and bar of any law etc.

10. The appellate order in an appeal under Section 104 or Order 43 Rule 1, CPC cannot by any stretch of imagination be included within the ambit of the word "order" used in the Proviso. As already demonstrated the interim appealable order falls outside the scope of the Proviso. If the appealable order is not covered by the word "order" used in the Proviso then naturally the order passed in appeal against such appealable order would also not be covered in its fold. The orders of temporary injunction under Order 39 Rules 1 and 2, the orders relating to attachments before judgment under Order 38 Rules 2, 3 and 6 and the order appointing a Receiver under Order 40 Rules 1 and 4, CPC and other orders are appealable. The final appellate order in such appeals cannot be said to be an order made "in the course of a suit or other proceeding" and therefore a revision against the final appellate order is not barred by the Proviso. The original order of the Trial Court which is appealable merges in the order of the Appellate Court and for the purpose of deciding whether the appellate order is revisable under Section 115, CPC or not the order which is to be seen is the appellate order. The appeal in which the appellate order is passed is covered by the word 'case' used in the opening part of Sub-section (1) of Section 115. If there is jurisdictional error or infirmity of the kind specified in clauses (a) to (c) of this sub-section then a revision against such appellate order would lie.

11. It has been held by the Supreme Court in Mahadeo v. Pune Municipal Corporation, (1995) 3 SCC 33, that the bar under Section 115(2), CPC is to exercise revisional powers where the party is provided with a right of appeal to the High Court or to the Sub-ordinate Court against the impugned order. "It is not a bar to exercise revisional power under Section 115(1) against the appellate order". Similarly in Kadiyala Rama Rao v. Gutala Kahna Rao, (2000) 3 SCC 87, it has been held that legislative change introduced in Section 115 (by the Amendment Act, 1976) is clear enough to indicate that an order passed by a Court sub-ordinate to the High Court in its appellate jurisdiction, if it is not appealable, would be within the ambit of Section 115 of the Code and thus a revisional application would be maintainable. In Shyam Sunder Agarwal & Co. v. Union Of India., AIR 1996 SC 1321, it has been observed that a revisional application before the High Court against appellate order passed under Section 39 of the Arbitration Act is maintainable. Even if a special statute expressly attaches finality to an appellant order passed under the statute, such provision of finality will not take away revisional powers of the High Court under Section 115 of the Code of Civil Procedure.

12. It was thus well settled that the revision under Section 115(1) was maintainable against the final appellate order if the conditions provided therein were satisfied and this legal position is not altered by the Proviso.

13. The matter can be examined from a different angle. Section 105(1) provides that "save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal". It is clear from this provision that if a party feels aggrieved from an interim order passed "in the course of a suit" which may affect the ultimate decision he has a right to assail that order in the appeal. The proviso to Section 115(1) defers or postpones the remedy of assailing the interim order in the ultimate appeal and, therefore, he is saved from the injustice which might arise to him. Instead of challenging the interlocutory order passed in the course of the suit by invoking the revisional jurisdiction of the High Court under Section 115(1) which is barred he can challenge that order in appeal. But he cannot assail an order passed in appeal under Section 104 or Order 43 Rule 1, CPC in the appeal against the decree passed in the suit. Therefore, it could not be the legislative intent to take away the remedy of revision against the final orders passed in appeal under Section 104 or under Order 43 Rule 1, CPC and such orders cannot be said to be covered by the Proviso.

14. It is pointed out by the learned Counsel for the respondent No. 3 that as per para 16 of the order in Sawal Singh's case (supra) two revisions against the appellate order under Order 43 Rule 1, CPC were dismissed. As already stated this Bench does not dissent or disagree with the law laid down in that case which has been neatly summed up in para 15 of the Order. It is axiomatic that a decision is an authority for the question of law which it decides. The ratio of a case is the principle which has been decided and not the actual decision. The ratio decidendi alone has the precedential efficacy. A decision is not a-precedent on a proposition of law which it did not decide. It has been stated in Orient Paper Industries Ltd. v. State of Orissa, AIR 1991 SC 672 : "What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. The doctrine of precedent, that is, being bound by a previous decision, is limited to the decision itself and not as to what is necessarily involved in it. In recent Constitution Bench decision in Executive Engineer v. N.C. Budharaj, (2001) 2 SCC 72, it has been observed that the ratio or the basis of reasons and principles underlying a decision is distinct from the ultimate relief granted or manner of disposal adopted in a given case. In view of this legal position the decision in Sawal Singh's case (supra) is not an authority on the question which has arisen in the present petition, that is whether the appellate order in appeals under Order 43, Rule 1, CPC is an order made "in the course of a suit or other proceeding". The decision in the present revision is on a different point. It is on a different aspect or facet concerning the applicability or non-applicability of the Proviso. The view taken by me in this case is not in any way in conflict with the questions of law decided in the earlier case. In State Financial Corporation v. Jagdamba Oil Mills, 2002 AIR SCW 500, it has been observed that circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper. The words of Lord Denning have been quoted with approval in this case which have become locus classics : "Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."

15. The answer to the question referred to above in para 4 is that the final appellate order passed in appeal under Section 104 or Order 43 Rule 1, CPC is not an order "in the course of a suit or other proceeding" and therefore, a revision against such appellate order is not barred by the Proviso to Section 115(1), CPC.

Hanuman Datt And Others v. State Of M.P And Others

Structured Summary of the Opinion (Revision under Section 115, CPC)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Respondent No. 3's Argument

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Hanuman Datt And Others v. State Of M.P And Others

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