Smt. Vidyawati vs Satish Chandra Agarwal and Others

D.S. Sinha, J.—Heard Sri Navin Sinha, Learned Counsel for the applicant.

It appears that Smt. Vidyawati, Plaintiff applicant, holds in her favour a decree, passed in Original Suit No. 486 of 1988 between Smt. Vidyawati and Satish Chandra Agarwal and others, against the opposite parties Sri Satish Chandra Agarwal, the Defendant-opposite party, first set, in the instant revision, has applied for setting aside the said decree under Order IX Rule 13 of the Code of Civil Procedure, 1908, hereinafter called the ''Code''. The application of the opposite party, first set, has been registered as Misc. Case No. 3 of 1989, giving rise to ''the instant revision In the said case, the Plaintiff-applicant filed an objection with regard to maintainability of the application of the opposite party, first set, under Order IX Rule 13 of the Code and urged the court to decide the question oi maintainability as preliminary question.

After hearing the parties, the court below came to the conclusion that the disposal of the preliminary objection raised by the Plaintiff-applicant as well as of the application of the Defendant-opposite party, first set under Order IX Rule 13 of the Code, depended upon investigation of fact and law, both. In the opinion of the court below the enquiry in relation to fact and in relation to law could not be held separately. On the basis of this conclusion the court below, by means of the impugned order dated 2nd May, 1989, over-ruled the objection of the Plaintiff-applicant and rejected her prayer for deciding the question of maintainability of the application of the Defendant-opposite party, first set, under Order IX Rule 13 of the Code as preliminary question.

This Court, after hearing the counsel for the applicant, is satisfied that, on the facts and in the circumstances of the case, the court below did not act illegally or with material irregularity in exercise of jurisdiction in declining to decide the question of maintainability of the application of the Defendant-opposite party, first set, under Order IX Rule 13 of the Code, as a preliminary question The impugned order is sound in law and does not warrant any interference by this Court in exercise of its jurisdiction u/s 115 of the Code.

This apart, instant revision itself is not maintainable inasmuch as an order declining to decide a question as preliminary question does not decide any case within the meaning of Section 115 of the Code. Further, refusal to adjudicate upon a question as preliminary question does not give rise to any question touching jurisdiction of the court. No revision against art order of such a refusal is maintainable.

The revision lacks merit and is, therefore, dismissed summarily.