Full Judgment Text
CRA120.18 1/2
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Civil Revision Application No.120/2018
Kamal Narayan s/o Vithobaji Kore
Vs.
Ld.Civil Judge, Senior Division, through District Court, Gondia and others.
______________________________________________________________________________________________________
Office notes, Office Memoranda of
Coram, appearances, Court's orders Court’s or Judge’s Orders
or directions and Registrar’s orders.
Shri D.C.R.Mishra, Advocate for applicant.
CORAM : A.S.CHANDURKAR, J.
DATED : 26.09.2018
In this Civil Revision Application, the applicant who is
the original plaintiff has challenged the order passed by the trial
Court dismissing the suit on the ground that the same was barred
by limitation and that the Civil Court had no jurisdiction to
entertain the same.
On the question of maintainability of the Civil Revision
Application, it is submitted by Shri D.C.R.Mishra, learned counsel
for the applicant that as there is no adjudication on merits, the
order passed by the trial Court cannot be termed to be a decree. In
that regard, learned counsel has referred to the decisions in
Ratansingh Vs. Vijaysingh and others reported in AIR 2001 SC 279
and National Institute of Mental Health and Neuro Sciences Vs. C.
Parameshwara reported in AIR 2005 SC 242.
The suit in question has been dismissed after answering
the preliminary issues. In terms of Section 2(2) of the Code of Civil
Procedure, 1908 (hereinafter referred to as “the Code”, for short),
that adjudication has force of a decree. The learned counsel for the
applicant sought to derive support from the observations as made in
Ratansingh (supra) to urge that the impugned adjudication would
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CRA120.18 2/2
not amount to a decree. However, the decision in Ratansingh
(supra) has been found not to lay down the correct law by the
larger Bench in Shyam Sunder Sarma Vs. Pannalal Jaiswal and
others, 2005(1) Mh.L.J. 340. In any event, the suit in question has
been decided by framing preliminary issues and thus is a decree
within the meaning of Section 2(2) of the Code.
Under Section 115(2) of the Code, this Court has no
jurisdiction to vary or reverse a decree or order that is passed by the
Civil Court against which an appeal lies. It is found that the remedy
of appeal under Section 96 of the Code is available to the applicant.
Hence, on that count it is held that the Civil Revision
Application is not maintainable.
The applicant is at liberty to avail the remedy available
to him in law. If the applicant invokes the statutory remedy
available in law, the time spent by the applicant in this Court in
pursuing the civil revision application shall be taken into
consideration while deciding the question of limitation.
Civil Revision Application is thus dismissed as not
maintainable. The points as raised in the revision application are
kept open.
JUDGE
Andurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Civil Revision Application No.120/2018
Kamal Narayan s/o Vithobaji Kore
Vs.
Ld.Civil Judge, Senior Division, through District Court, Gondia and others.
______________________________________________________________________________________________________
Office notes, Office Memoranda of
Coram, appearances, Court's orders Court’s or Judge’s Orders
or directions and Registrar’s orders.
Shri D.C.R.Mishra, Advocate for applicant.
CORAM : A.S.CHANDURKAR, J.
DATED : 26.09.2018
In this Civil Revision Application, the applicant who is
the original plaintiff has challenged the order passed by the trial
Court dismissing the suit on the ground that the same was barred
by limitation and that the Civil Court had no jurisdiction to
entertain the same.
On the question of maintainability of the Civil Revision
Application, it is submitted by Shri D.C.R.Mishra, learned counsel
for the applicant that as there is no adjudication on merits, the
order passed by the trial Court cannot be termed to be a decree. In
that regard, learned counsel has referred to the decisions in
Ratansingh Vs. Vijaysingh and others reported in AIR 2001 SC 279
and National Institute of Mental Health and Neuro Sciences Vs. C.
Parameshwara reported in AIR 2005 SC 242.
The suit in question has been dismissed after answering
the preliminary issues. In terms of Section 2(2) of the Code of Civil
Procedure, 1908 (hereinafter referred to as “the Code”, for short),
that adjudication has force of a decree. The learned counsel for the
applicant sought to derive support from the observations as made in
Ratansingh (supra) to urge that the impugned adjudication would
::: Uploaded on - 28/09/2018 ::: Downloaded on - 02/06/2024 03:01:16 :::
CRA120.18 2/2
not amount to a decree. However, the decision in Ratansingh
(supra) has been found not to lay down the correct law by the
larger Bench in Shyam Sunder Sarma Vs. Pannalal Jaiswal and
others, 2005(1) Mh.L.J. 340. In any event, the suit in question has
been decided by framing preliminary issues and thus is a decree
within the meaning of Section 2(2) of the Code.
Under Section 115(2) of the Code, this Court has no
jurisdiction to vary or reverse a decree or order that is passed by the
Civil Court against which an appeal lies. It is found that the remedy
of appeal under Section 96 of the Code is available to the applicant.
Hence, on that count it is held that the Civil Revision
Application is not maintainable.
The applicant is at liberty to avail the remedy available
to him in law. If the applicant invokes the statutory remedy
available in law, the time spent by the applicant in this Court in
pursuing the civil revision application shall be taken into
consideration while deciding the question of limitation.
Civil Revision Application is thus dismissed as not
maintainable. The points as raised in the revision application are
kept open.
JUDGE
Andurkar
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