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TMI Blog2002 (9) TMI 882X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 115. 6. I am in full and respectful agreement with my learned and noble brother K.K. Lahoti, J., in respect of all the three propositions of law given above. But the elucidation or clarification of the law already laid down is permissible by the same Bench and also by any co-ordinate Bench. 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rine 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 pre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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