Subbiah Pillai Alias Subramania Pillai Petitioner. v. Kailasam Pillai .

The preliminary objections are taken that there can be no revision in this case as the petitioner has a remedy by suit, and secondly that no question of jurisdiction is involved. It seems to me that both these objections must be upheld.

The petitioner's application to the Lower Court was one under Order XXI, Rule 100 of the C. P. C. and his petition was dismissed under Order XXI, Rule 101. His remedy in these circumstances was to sue to establish the right he claimed, under the provisions of Order XXI, Rule 103. The cases Ittiachan v. Vellappan and Subbu Reddiar v. Kumaraswamy Reddiar are clear authorities for the contention that in these circumstances no petition for revision lies. The cases cited for the petitioner, viz., Karupayee v. Chinnammal and Sree Krishna Doss v. Chandook Chand seem to me not to be in point. In the former, Oldfield J., following the practice of the Court, revised an order setting aside an ex parte decree, although the petitioner could have advanced the considerations he relied on by appeal. In the latter, Miller, J. (while emphasising the rule that when a party has a remedy elsewhere than in the High Court, the High Court should not, except in special cases, interfere in revision) in the special facts of the case before him interfered in revision although the petitioner had a remedy by suit, on the ground that non-interference would only lead to multiplication of proceedings by a suit to which there could be no defence. Neither of these cases, therefore, afford any answer to the first preliminary objection.

As regards the second objection, the contention of the petitioner is that the Lower Court acted illegally and without jurisdiction in entertaining an application for delivery “after the time limited by law and after a similar application had been dismissed as time-barred “. (Ground No. 4). There is no evidence that a previous application for delivery was dismissed as time-barred or that the second application was out of time. The petitioner relies upon Ex. A, a deposition by the decree-holder in a criminal case, in which he says that after delivery was obstructed on the first petition, he put in a petition subsequently and it was dismissed as time-barred. Assuming that Ex. A is admissible to prove these facts, there is nothing to show what was the nature of the subsequent petition or how it was time-barred and nothing is to be gained by speculating on those points. From the B Diary it appears that the District Munsif called for the old execution petition to be produced, but petitioner did not see fit to comply with that order. On the facts placed before him the District Munsif was justified in following the decision in Muttia v. Appasami and in entertaining the second petition for delivery. That case is sought to be distinguished on the ground that it was a case between a decree-holder and judgment debtor, whereas the present is one between a decree-holder and a third party (see Kesri Narain v. Abul Hasan*(6), but it seems to me that the same principle governs both cases. There is nothing whatever to show that the petition referred to in Ex. A. was one under Order 21, Rule 97, C. P. C., or that any order was passed against the decree-holder under Order 21, Rule 99. From grounds 4 and 6 of this petition it would appear that the petition referred to in Ex. A was a petition for delivery and not an application under Order XXI, Rule 97.

In these circumstances I uphold the second objection also that no question of jurisdiction is involved which would justify interference under Section 115, Civil Procedure Code.

The Petition is dismissed with costs.

Petition dismissed.