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High CourtsSingle Bench(2010) 11 KAR CK 0028

Sri B.M. Nagappa Patel, Sri. B.N. Manjunath, Sri. B.N. Jagadish and Sri. B.N. Prabhakar vs B.A. Shashikanth

Karnataka High Court · Decided on 2 November 2010

HON’BLE JUDGES
Jawad Rahim, J
CASE NUMBER
C.R.P. No. 311 of 2010

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Judgment

5 paragraphs · 351 words

Jawad Rahim, J.—This revision u/s 115 of CPC is directed against the order in M.A. No. 24/2008 on the file of the I Addl. Senior Civil Judge & C.J.M. at Shivamogga dated 28.09.2010 by which the order passed by the trial court dated 12.06.2008 in O.5.477/2006 declined to grant ad interim order of injunction against the Defendants under Order 39 Rule 1 and 2 has been reversed. By the impugned order, the Appellate court has allowed I.A. filed under Oder 39 Rule 1 and 2 of CPC granting ad interim order against the Petitioners. The order impugned therefore is an order granting ad interim order for injunction which is an interlocutory in nature, The question is whether revision u/s 115 of CPC against such an interlocutory order is maintainable.

2.

Sri. H. Kantha Raja, learned Counsel appearing for the Petitioners submit that the order impugned is a final order disposing of the appeal and hence, the bar in exercise of revisional power by the High Court incorporated u/s 151 of CPC is not applicable.

3.

This issue had come up before this Court and in similar matters view has been taken that as the order passed under the provisions of Rule 1 and 2 of order 39 of CPC is interlocutory in nature, revision to the High Court is not maintainable in view of restrictions by Sub-Section 2 of Section 115 Code of Civil Procedure. No doubt, by the impugned order, the appeal has been finally disposed of but it is an effect of granting an order of injunction and hence Sub-Section 2 operates.

4.

At this stage, I accept the request of the teamed counsel Sri. Kantha Raja to permit the Petitioners to convert revision into Writ petition under Articles 226 and 227 of the Constitution of India, The request is granted. The Petitioner to take required stops like payment of additional court fee etc., upon which the Registry is directed to register the case as Writ Petition and post it for admission.

The Petitioners are permitted to move the appropriate Bench for posting. Accordingly, the petition stands disposed of.