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Judgment
Manoj Kumar Tiwari, J
This is plaintiff's petition against judgment and order dated 19.02.2021 passed by learned District Judge, Dehradun in Civil Revision No. 202 of 2016. By the said judgment, learned District Judge has set-aside the order passed by trial Court/IIIrd Addl. Civil Judge (Senior Division), Dehradun, whereby application filed by SIIDCUL (respondent no. 4) under order 22 Rule 10 C.P.C. has been rejected.
It transpires that petitioner had filed a suit for Permanent Prohibitory Injunction against Pradeshiya Industrial and Investment Corporation Ltd., through Managing Director, PICUP Bhawan, Gomti Nagar, Lucknow and two others. The said suit was decreed ex-parte on 07.04.2003. U.P. State Industrial Development Corporation Ltd. filed an application under Order 9 Rule 13 C.P.C. for setting-aside the ex-parte decree, which is still pending. Due to State Reorganisation, the assets of U.P. State Industrial Development Corporation Ltd. devolved upon SIIDCUL (respondent no. 4), therefore, respondent no. 4 moved an application under Order 22 Rule 10 C.P.C., seeking leave of the Court to continue the proceedings under Order 9 Rule 13 C.P.C., as an applicant. The said application was rejected by trial Court, vide order dated 24.11.2016. Respondent no. 4 filed a revision under Section 115 C.P.C. against rejection of the said application, which has been allowed by learned District Judge by the impugned judgment. Thus, feeling aggrieved, petitioner has approached this Court.
Mr. Neeraj Garg, learned counsel appearing for the petitioner submits that order rejecting SIIDCUL's application filed under Order 22 Rule 10 C.P.C. is appealable under Order 43 Rule 1(l) C.P.C., therefore, in view of the express bar contained in sub-Section (1) of Section 115 C.P.C., the revision filed by the SIIDCUL was not maintainable.
This Court finds substance in the contention made by learned counsel for the petitioner that in view of the express bar contained in sub-Section (1) of Section 115 C.P.C, no revision could have been filed by SIIDCUL (respondent no. 4) against the order of rejection of his application filed under Order 22 Rule 10 C.P.C..
Hon'ble Supreme Court in the case of Rishabh Chand Jain and another Vs. Ginesh Chandra Jain reported in (2016) 6 SCC 675 has held as under:-
"14. The impugned order dismissing the suit on the ground of Res Judicata does not cease to be a decree on account of a procedural irregularity of non-framing an issue. The court ought to treat the decree as if the same has been passed after framing the issue and on adjudication thereof, in such circumstances. What is to be seen is the effect and not the process. Even if there is a procedural irregularity in the process of passing such order, if the order passed is a decree under law, no revision lies under Section 115 of the Code in view of the specific bar under sub-Section (2) thereof. It is only appealable under Section 96 read with Order 41 of the Code."
In view of the legal position, as discussed above, this Court has no hesitation in holding that the revision filed by SIIDCUL (respondent no. 4) was not maintainable.
On this short point alone, the Writ Petition is allowed. Impugned judgment and order dated 19.02.2021 is quashed. However, respondent no. 4 shall be at liberty to file an appeal against the order dated 24.11.2016. If such appeal is filed, the Appellate Court shall take into account the provisions contained in Section 14 of Limitation Act, while considering the application filed for condonation of delay.