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Judgment
Mullick, J.—On the 28th April, 1922, the defendant in the suit, out of which this application arises, was present, but the plaintiff was not present in person and his pleader filed a petition for time to adduce evidence. The plaintiff''s application was rejected and the pleader thereupon said that he had no further instructions. The Court then proceeded to hear the case and allowed the defendant to file a petition for the amendment of issues and to tender the certified copy of a decision in a previous application under O. 9, R. 13, C.P.C. which related to the case. The Court, after considering this decision and hearing the defendants'' pleader, found that the suit was barred by res judicata and it accordingly made a decree of dismissal. In making this order the Court was careful to note that it was acting under provisions of R. 3 of O. 17, C.P.C.
Now, whether or not the Court was right in disposing of the case under O. 17, R. 3, C.P.C. or whether it should have acted under R. 2 of that Order is not a point which appears to be material for the decision of the present application before us. Here the plaintiff applies to us to exercise our revisional jurisdiction under S. 115, C.P.C., in respect of the order of 28th April, 1922, on the ground that the Court had no jurisdiction to make it under O. 17.
He contends that by reason of R. 2 of that Order the Court should have proceeded under O. 9, and, therefore, any decree purporting to have been passed under R. 3 was made without jurisdiction. Now, S. 115, C.P.C., clearly lays down that the High Court cannot interfere in revision if there is an appeal against the order complained of. Whether we view the order of the 28th April as an order properly made under R. 3 of O. 17 or as an order under O. 9, R. 8, the plaintiff had a right of appeal. In the former case he had an appeal against the decree and in the latter case it was open to him to apply under O. 9, R. 9 and in the event of being unsuccessful, he had a right of appeal under O. 43 against the decision under O. 9, R. 9. He did in fact apply under O. 9, R. 9 and that application was rejected. No. appeal was filed against that order of rejection and there is no application for the revision of that order before us. It is clear that the present application is not maintainable.
The result is that the application is dismissed with costs; hearing-fee one gold mohur.
Kulwant Sahay, J.
I agree.