Kripashankar Mudgal vs Lalit Mohan and others

Abhay M. Naik, J.

The Defendant/petitioner has preferred the present revision application stating that it is against the findings given by the Court of A.D.J., Sheopurkalan in paragraph-26 of the impugned judgment and decree passed in Civil Suit No. 9-A/99.

Shri Vijaywargiya, Learned Counsel for the Respondent No. 1 raised a preliminary objection that the revision petition is not maintainable since the same is infact against the decree and an appeal is provided for u/s 96 of Code of Civil Procedure.

Shri Niwaskar, Learned Counsel for the revisionist submitted that the revisionist is not aggrieved by the judgment and decree, but is aggrieved merely by the findings contained in paragraph-26 of the impugned judgment. He submitted that an appeal is not provided against merely a finding and therefore, the Defendant/revisionist has rightly preferred the present Civil revision. Learned Counsel for this purpose relied on the authorities reported as Smt. Ganga Bai Vs. Vijay Kumar and Others, and Banarsi and Others Vs. Ram Phal, .

The law propounded by the aforesaid judicial authorities is not in dispute at all. The question in the present case is whether the revisionist is aggrieved merely by the findings or by the judgment and decree itself. Learned Counsel for the revisionist drew attention of this Court to paragraph-26 of the impugned judgment which is reproduced below for clarity of the case:

The decree is also reproduced below for showing the similarity:

It is ordered and decreed that:

On perusal, it is found that paragraph-26 of the impugned judgment does not contain merely a finding, but is virtually the operative portion in part of the judgment which is embodied in the decree itself.

The decree has been defined in Section 2(2) of CPC as under:

"decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include -

(a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default.

No revisionist can be permitted to challenge a decree under the garb of a challenge to a finding. Paragraph-26 of the impugned judgment amounts to expression of an adjudication and cannot be termed merely as a finding. The revision memo contains a prayer that the findings given by the learned trial Court in paragraph-26 vide impugned judgment and decree dated 9-11-2001 may be set aside. Thus, the revisionist under the garb of challenge in this revision application is virtually challenging the impugned judgment and decree itself. If paragraph-26 of the impugned judgment is disturbed, the decree passed by the learned trial Judge will also get disturbed. This is not permissible except in a regular Civil Appeal u/s 96 of Code of Civil Procedure. Thus, the revision application is misconceived and the same is dismissed as not maintainable.

Learned Counsel for the Appellant while making submissions made an alternative prayer for conversion of the civil revision into first appeal. It may be seen that the suit of the Plaintiff/respondent No. 1 has been dismissed by the impugned judgment and decree. The Defendant/revisionist had not preferred any counter claim. In this view of the matter, the Defendant/revisionist cannot be said to be a person aggrieved by the impugned judgment and decree. So, in case if he wants to prefer an appeal he may be required to obtain a leave from this Court to prefer an appeal. No such application for seeking leave is on record before this Court. There being no such application on record, the prayer for conversion cannot be entertained and the revisionist cannot be permitted to convert his revision application into first appeal without first seeking the leave. However, it will be open for the revisionist to prefer regular Civil Appeal u/s 96 of CPC after seeking the necessary leave, if advised, in accordance with law.

No order as to costs.

Certified copy of the impugned judgment and decree be returned to the counsel for the revisionist on retaining attested true copy of the same on record.