Heera Bai and Another vs Budhiyarin Bai and Others

Prashant Kumar Mishra, J.—From the judgment and decree under challenge in this revision it would appear that the suit preferred by the applicant was for partition and allotment of 1/2 share, wherein the Respondent No. 1 Budhiyarin Bai also filed a counter-claim for partition, damages and allotment of 1/2 share.

The Trial Court decreed the suit as well as counter claim partly and found that the Plaintiff Heera Bai, Defendant No. 1 Budhiyarin Bai and Respondent No. 2 Ramkunwar are each entitled to 1/3rd share in the suit property. The Trial Court had not awarded any decree for damages. However, the First Appellate Court directed the Plaintiff to pay Rs. 18,000/- as damages to the Defendant No. 1 Budhiyarin Bai who was Appellant before First Appellate Court.

Section 102 of the Code of CPC reads as under:

No second appeal in certain cases.-- No second appeal shall lie from any decree, when the subject matter of the original suit is for recovery of money not exceeding twenty-five thousand rupees.

On a reading of provision contained in Section 102, it would appear that the bar created u/s 102 would be attracted when the original suit is for recovery of money not exceeding Rs. 25,000/-. Thus, when the original suit was not merely for recovery of money, but some other prayers like issuance of decree of injunction, declaration or partition has been prayed for by the parties, the bar would not be attracted.

In the matter of Bokka Sreeramulu Vs. Kalipatnapu Venkateswar Rao and Another, , it has been held that "it is the nature of the suit and not of appeal that is material for purposes of Section 102 of Code of Civil Procedure. It is the character of the suit as it was originally framed and presented to the Court and not which it may assume in the course of or after the trial by virtue of the findings of the Court or in the appeal that may eventually be brought that determines the nature of the suit for purposes of Section 102 of Code of Civil Procedure".

In the present case also, the original suit was for partition, separate possession and damages. Though the First Appellate Court has confirmed the findings and decree by the Trial Court with regard to entitlement of 1/3rd share each to Budhiyarin Bai, Heera Bai and Ramkunwar and the applicant in this revision appears to be aggrieved only with such part of the judgment and decree passed by the First Appellate Court, wherein they have been directed to pay damages of Rs. 18,000/- to the Defendant No. 1 Budhiyarin Bai, but since the nature of the suit in the beginning was that of partition and separate possession, in the opinion of this Court, the bar u/s 102, Code of CPC will not be applicable in the present case.

In view of the above, the judgment and decree passed by the First Appellate Court can only be examined by this Court, if the applicant prefers a second appeal u/s 100 of Code of Civil Procedure, and not in a revision u/s 115 of Code of Civil Procedure. This revision application is thus, not maintainable.

Learned Counsel for the applicant, at this stage, prays for withdrawal of this revision with liberty to prefer a duly constituted second appeal to challenge the impugned judgment and decree.

Prayer made by the learned Counsel for the applicant is accepted. The revision petition is dismissed as withdrawn with liberty to prefer a duly constituted second appeal u/s 100 of Code of Civil Procedure.

The judgment and decree annexed with this revision be returned to the applicant on supplying the xerox copy of the same by learned Counsel for the applicant.