Mahesh Chandra vs Iliyas and Others

Hon''ble Sanjay Misra, J.—This first appeal from order has been filed under Order XLIII Rule 1 (r) C.P.C. read with Order XXI Rule 98 C.P.C. against the judgement and order dated 11.10.2011 passed in Civil Revision No. 16 of 2008 by the III Additional District and Sessions Judge, Gautambudh Nagar, whereby he has allowed the revision set aside the judgement of the trial court and remanded the matter to the trial court.

Sri Y.S. Saxena, learned counsel for the appellant has submitted that the appellant had filed Original Suit No. 175 of 1975 (Mahesh Chandra V. Ahmad Khan) before the Judge, Small Causes Court, Khurja, District Bulandshahar, which was decreed on 13.12.1979. The opposite party-respondent filed Revision No. 16 of 2008 (Iliyas and others V. Mahesh Chandra and others) and the III Additional District and Sessions Judge, Gautambudh Nagar has proceeded to allow the revision and remanded the matter to the trial court. Learned counsel states that the revision was not maintainable against the judgement and decree passed by the trial court and as such the same requires to be set aside.

The stamp reporter has reported that this First Appeal From Order is not maintainable. A perusal of the provisions of Order XLIII C.P.C. indicates that a First Appeal From Order is not maintainable against such revisional order and in case the appellant is challenging the revisional order for want of jurisdiction of the revisional court, the said order alleged to be without jurisdiction is not revisable under Order XLIII Rule 1 C.P.C.

In view of the aforesaid circumstances, the report of the stamp reporter appears to be correct. This appeal under Order XLIII Rule 1 (r) C.P.C. is liable to be dismissed as not maintainable. However, the appellant may avail his remedy available to him in law against the impugned revisional order.

Learned counsel for the appellant prays that certified copy of the impugned order be returned to him. The prayer is allowed. Learned counsel for the appellant is required to submit a true and correct copy of the impugned revisional order duly attested by him in the office by 17.1.2012 and in case same is filed, office is required to return the certified copy of the impugned order dated 11.10.2011 passed in Revision No. 16 of 2008 by the III Additional District and Sessions Judge, Gautambudh Nagar (impugned in this appeal).

The report of the stamp reporter is upheld. The appeal is therefore, dismissed as not maintainable.

No order is passed as to costs.