The Court held that a Civil Revision Petition is not maintainable under Article 227 against an Order under Section 144 of the CPC, as such Orders are deemed decrees. The remedy lies by way of appeal under Section 96.
Revision Petition dismissed on the ground of non-maintainability; appeal remedy left open.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HIGH COURT OF ANDHRA PRADESH AT AMARAVATHI
CIVIL REVISION PETITION No.216 OF 2021
Between:
Sarvepalli Venkata Radha Krishna, S/o Hanumantha Rao, Aged about 49 years, R/o D.No.8-404(1), M.M. Donka, Ongole, Prakasam District. …. Petitioner And Rudravaram Anand Swaroop, S/o Late R.V. Subbaiah, Aged about 26 years, Occupation: Cultivation, R/o Rudravaram Village, Santhanuthalapadu Mandal, Prakasam District. …. Respondent DATE OF ORDER PRONOUNCED: 01-07-2022
THE HON'BLE SRI JUSTICE NINALA JAYASURYA
____________________ NAINALA JAYASURYA, J
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***** THE HON'BLE SRI JUSTICE NINALA JAYASURYA
+ CIVIL REVISION PETITION No.216 of 2021
%Date : 01.07.2022
# Sarvepalli Venkata Radha Krishna
And
> HEAD NOTE : --
? Cases referred : --
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THE HON’BLE SRI JUSTICE NINALA JAYASURYA
CIVIL REVISION PETITION No.216 of 2021
ORDER:
The present Revision Petition has been preferred against an Order dated 13.10.2020 in E.A.No.2 of 2018 in E.P.No.75 of 2015 in O.S.No.220 of 2006 on the file of the Court of the Additional Senior Civil Judge, Ongole, Prakasam District.
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deliver possession of items 1 and 2 of the suit schedule properties to the petitioner/J.Dr.No.7 within 6 months from the date of the Order, failing which the respondent/J.Dr.No.7 is granted liberty to get delivery the same through process of Law. Aggrieved by the said Order, the present Revision Petition was preferred by the petitioner/decree holder on various grounds.
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petitioner/decree holder. He submits that the Court below grossly erred in allowing the application without looking into the crucial aspects and went wrong in allowing the application without considering the matter in a proper perspective. He submits that the petitioner had approached the Honourable Court with unclean hands as such the Court below ought to have rejected the application at the threshold. He further submits that no party shall suffer by the acts of the Court and as the respondent herein obtained the impugned Order by playing fraud on the petitioner as well as on the Honourable Court, the Order in E.A.No.2 of 2018 is not sustainable in Law. He submits that unless the impugned Order is set aside, the petitioner/decree holder would suffer serious prejudice and irreparable loss. Making the said submissions, the learned counsel for the petitioner seeks to allow the Revision Petition.
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circumstances, of the case the Court below is justified in allowing the application filed by the respondent/J.Dr.No.7. In support of his contentions, the learned counsel places reliance on the decisions reported in AIR 1965 SC 1477 and AIR 1996 SC 1204 . The learned counsel would further submit that the petitioner/decree holder during the pendency of application to set aside the ex parte decree sold the subject matter properties with a mala fide intention and therefore he is not entitled to any relief from this Court.
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Section 144. Application for restitution.-
(1) Where and in so far as a decree 1[or an Order] is 2[varied or reversed in any appeal, revision or other proceedings or is set aside or modified in any suit instituted for the purpose the Court which passed the decree or Order] shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree 1[or Order] or 3[such part thereof as has been varied, reversed, set aside or modified], and, for this purpose, the Court may make any Orders, including Orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly 4[consequential on such variation, reversal, setting aside or modification of the decree or Order.]
5[Explanation.-For the purposes of sub-section (1) the expression "Court which passed the decree or Order" shall be deemed to include,-
(c) where the Court of first instance has ceased to exist or has ceased to have jurisdiction to execute, it, the Court which, if the suit wherein the decree or Order was passed were instituted at the time of making the application for restitution under this section, would have jurisdiction to try such suit.]
(2) No suit shall be instituted for the pr-pose of obtaining any restitution or other relief which could be obtained by application under sub-section (1).
the Supreme Court in Mahijibhai Mohanbhai Barot vs. Patel Manibhai Gokalbhai and others1 referred to supra, inter alia answered the question holding that the application for restitution under Section 144 of CPC is an application for execution of a decree.
1 AIR 1965 Supreme Court 1477
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10. Section 2 (2) of CPC deals with a „Decree‟ in the following terms:-
(2) “decree” means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include –
(a) any adjudication from which an appeal lies as an appeal from an order; or (b) any order of dismissal for default.
Explanation:- A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final where such adjudication completely disposes of the suit. It may be partly preliminary and partly final.
2 2012 (2) ALT 230 (S.B.)
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under Section 115 of CPC does not lie. The learned Judge was also not inclined to accept the alternative contention that a Revision Petition under Article 227 of the Constitution of India can be maintained despite alternative remedy by way of appeal.
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against the Order under Revision. Therefore, this Court deems it appropriate to leave all the contentions for examination on merits by the Appellate Court, in the event an appeal is preferred by the petitioner against the impugned Order.
As a sequel, miscellaneous applications, if any, pending shall stand closed.
__________________ NINALA JAYASURYA, J
Date: 01.07.2022
IS
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THE HON’BLE SRI JUSTICE NINALA JAYASURYA
Civil Revision Petition No.216 of 2021
Date: 01.07.2022
IS
2 issues framed by the court
Whether a Civil Revision Petition under Article 227 of the Constitution is maintainable against an Order passed under Section 144 of the Code of Civil Procedure when an appeal lies under Section 96.
Whether an Order passed pursuant to an application under Section 144 of the Code of Civil Procedure amounts to a decree attracting appealability.
4 provisions across 2 enactments
Sarvepalli Venkata Radha Krishna
Rudravaram Anand Swaroop
Nainala Jayasurya
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
