A.M. Khanwilkar, J.
1. Heard.
2. Mr. Anturkar appearing for the respondent has raised preliminary objection regarding maintainability of the present revision application. According to him, the trial Court has passed decree in suit under Section 6 of the Specific Relief Act. Such decree is not amenable to revision under Section 115 of the Code of Civil Procedure. This submission is pressed on the basis of Section 115 of the Civil Procedure Code. Section 115 of the Code as amended reads thus:
115. Revision. -- (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears --
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit:
[Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceedings, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.]
[(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.
[(3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceedings is stayed by the High Court.]
Explanation -- In this section, the expression, 'any case which has been decided' includes any order made, or any order deciding an issue, in the course of a suit or other proceeding.]
2A. According to Mr. Anturkar Sub-section (1) employs expression 'any case which has been decided', which expression has been explained by the legislature in the explanation following Sub-section (3) that it includes any order made, or any order deciding an issue, in the course of a suit or other proceedings. According to Mr. Anturkar, limited meaning will have to be given to this expression to only mean that the order passed in suit or proceedings before the lower Court and not the decree as is passed in the present case. Shri Anturkar then referred to the proviso below Sub-section (1) to contend that once again the proviso reiterates the position that the High Court shall not vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding; which would mean that Section 115 of the Code has been enacted to govern only the orders passed in the pending proceedings before the trial Court and not apply to final decree to be passed in the suit. Mr. Anturkar also relied on Sub-section (2) to contend that it reiterates the position that High Court shall not vary or reverse any decree or order against which appeal lies either to High Court or to Court subordinate thereto. Mr. Anturkar has pressed into service decision of the Supreme Court in the case of Mukesh Tripathi v. Senior Divisional Manager, L/C and Ors. reported in : (2004)IIILLJ740SC which had occasioned to consider the scope of expression 'includes'. Mr. Anturkar then relied on the decision in the case of The South Gujarat Roofing Tiles Manufacturers Association and Anr. v. The State of Gujarat and Anr. reported in : [1977]1SCR878 which has considered the expression 'includes'. It is argued that the explanation to Section 115 uses the word includes in the sense of 'means'. It is submitted that the word 'decree' has been defined in the Code in Section 2(2), which is perceptibly different from word 'order'. On this basis, it is contended that on reading the provision as a whole, the legislative intent is to limit the remedy of revision only in respect of order passed by the trial Court in the proceedings pending before it.
3. Counsel for the applicant however, submits that Section 115 of the Code will have to be harmoniously construed. Remedy provided in Section 115 is not limited to only the interim order which if set aside will have the effect of finally disposing of the suit or other proceeding, but also decree against which no appeal lies either before the subordinate Court or the High Court. Mr. Karnik placed reliance on the decision reported in : AIR1999SC3873 in the case of Mahabir Prasad Jain v. Ganga Singh which arose out of the remedy of revision under Section 115 of the Code invoked by the applicant in the suit against decree passed under Section 6 of the Specific Relief Act. Reliance is also placed on another decision in the case of Bhojraj Krishnarao and Anr. v. Sheshrao Diwakarrao and Ors. reported in , which was also revision application filed under Section 115 of the Code against a decree passed in the suit under Section 9 of the Specific Relief Act; And also in the case of Padartha Amat and Anr. v. Siba Sahu reported in : AIR1993Ori92 , which was again revision application entertained by the High Court of Orissa under Section 115 of the Code against a decree passed in Section 6 of the Specific Relief Act. Mr. Karnik has also placed reliance on the decision of the Karnataka High Court, reported in : AIR1994Kant350 in the case of Mehboob Pasha v. A.R. Viswanatha Chetty and Ors. which specifically dealt with the similar objection about the maintainability of revision against the decree passed in the suit under Section 6 of the Specific Relief Act. That objection has been negatived in paragraph 10 of this decision, while relying on the decision reported in AIR 1953 Pepsu 188 and : AIR1965Mad122 as well as 1988(3) Karnataka L.J.139 in paragraph 12.
4. Mr. Anturkar in his usual fairness brought to my notice the decision of the Madras High Court in the case Chinna Pillai v. N. Govindaswami Naidu reported in : AIR1969Mad191 which had occasion to consider similar objection regarding maintainability of the revision. The Learned Single Judge of Madras High Court disallowed that objection and has held that the revision against a decree passed in such a suit was maintainable. This exposition can be found in paragraph-19 of the reported Judgment. Learned single Judge in turn has relied on the decision of the Division Bench of the same High Court reported in : AIR1965Mad122 , in the case of N.L. Corporation v. Narayana, which decision has been adverted to and followed by the Karnataka High Court, on which reliance is placed by the counsel for the applicant.
5. Having considering the rival submissions, I have no hesitation in rejecting the preliminary objection raised on behalf of the respondent about maintainability of the revision application against a decree passed in a suit under Section 6 of the Specific Relief Act. I am in agreement with the legal position stated in the three reported decisions which are pressed into service before me of the Karnataka High Court in the case of Mehboob Pasha as well as decision of the Division Bench of Madras High Court in the case of N. L. Corporation Ltd. and of the Single Judge of Madras High Court in the case of China Pillai. These decisions have clearly noted similar objection and have held that revision application under Section 115 of the Code is maintainable against a decree passed in a suit under Section 6 of the Specific Relief Act. At this stage it is relevant to note that in the other decisions pressed into service by the learned Counsel for the applicant, this question was not directly put in issue but the Apex Court as also Nagpur High Court and Orissa High Court have noted that revision application was filed against a decree passed in suit under Section 6 of the Specific Relief Act and proceeded to entertain the same. It means that in those cases the Court assumed that such revision application was available in law. Mr. Anturkar however has, tried to wriggle out of the decisions which are directly on the point as referred to earlier on the argument that the language of Section 115 of the Code will have to be construed to mean that it is an enabling provision permitting revision application only against order passed by the Subordinate Courts during the pendency of the suit before it and not against a decree. It is not possible to countenance this submission. Sub-section (1) read with Sub-section (2) of the Section 115 of the Code is very wide. It not only takes within its sweep the order passed by the subordinate Court in proceedings which are still pending before it but also a decree in a suit disposing of the suit finally. The limitation to entertain the revision application however, is that, no appeal lies against the said order or decree and the parameters provided in (a) to (c) of Sub-section (1) will have to be observed. To get over this position, Mr. Anturkar has relied on proviso to Sub-section (1) which mentions that High Court shall not vary and reverse any order made in deciding an issue in the course of suit or other proceedings. The argument seems to be attractive, but clearly overlooks that the proviso cannot limit the purport of the main provision which not only pertains to order passed in the pending proceedings in the subordinate Courts but also a decree finally disposing of the suit. Suffice it to observe that the proviso does not whittle down the availability of remedy of revision under Section 115 of the Code against a decree passed by subordinate Court in a suit under Section 6 of the Specific Relief Act. Mr. Anturkar then relying on the language of Sub-section (2) contends that it provides that High Court shall not vary and reverse any decree or order against which an appeal lies either to the High Court or to any subordinate thereto. Even Sub-section (2) of Section 115 of the Code does not curtail the remedy of revision against decree passed by the subordinate Court in a suit under Section 6 of the Specific Relief Act. The argument of Mr. Anturkar that the explanation following Sub-section (3) of Section 115 of the Code would mean that the main provision is limited to remedy against an order to be passed by the subordinate Court in pending proceedings; Reliance is placed on the decision of the Apex Court in the cases of Mukesh Tripathi and the South Gujarat Manf. Association and Anr. Indeed, that decision had occasion to consider expression 'includes'. However, as already observed the purport of Sub-section (1) read with Sub-section (2) of Section 115 of the Code is expansive to include remedy of revision against a decree passed in a suit under Section 6 of the Specific Relief Act.
6. Mr. Anturkar had also contended that Sub-section (1) of Section 115 of the Code provides that the High Court may make such 'order' in the case as it thinks fit-which fortifies the contention that the High Court can only make an order and not pass a decree as would be required to be passed in case the revision was to succeed. Mr. Anturkar submits that expression 'order' has been defined under Sub-section (14) of Section 2 to mean that the formal expression of any decision of a Civil Court 'which is not a decree'. Indeed, Section 2(14) of the Code provides the meaning of expression 'order' to mean the formal expression of any decision of Civil Court which is not a decree. However, it cannot be overlooked that the said definition is subject to the requirement that there is nothing repugnant in the subject or context in the provision under Section 115 of the Code. As has been held earlier, Section 115 of the Code is wide enough not only to encompass an order passed by the subordinate Court in pending proceedings before it but also decree finally disposing of the suit before it. Accordingly, there is no merit in the preliminary objection regarding maintainability of the revision application.
7. I shall therefore, now proceed to consider the arguments on merits. Counsel for the parties were heard. Insofar as merits of the challenge to the impugned decree, arguable questions are raised. This matter deserves to be admitted. However, I would prefer to place the matter for final disposal on 27th April, 2006.
8. It will be open to the parties to file additional documents, if any, well in advance.
9. Status quo with regard to the suit property be maintained till further orders.