ORDER
S.P. Khare, J.
1. This is a revision by the plaintiffs under Section 115, CPC against the order by which their appeal under Order 43 Rule 1 (r), CPC challenging the order of the rejection of their application for temporary injunction under Order 39 Rules 1 and 2, CPC filed in the suit, has been dismissed.
2. A preliminary objection has been raised on behalf of the respondent No. 3 that the present revision is not maintainable in view of the proviso to Section 115(1), CPC. Reliance is placed by him on the decision of this Court in Sawal Singh v. Smt. Ramsakhi, 2002(4) M.P.H.T. 200 = 2002 (II) MPJR 169. This objection has been raised in several other revision petitions pending before this Court. Therefore, arguments were heard at length. Sarvashri Ravish Agrawal, Sr. Advocate, R.P. Agrawal, Sr. Advocate, R.P. Jain, R.S. Tiwari, P.D. Tiwari, Alok Aradhe and Ajay Mishra, Advocates have also addressed this Court on this point.
3. The proviso to Section 115(1), CPC reads as under:--
'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 proceeding, 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'.
(Underlined by me)
4. The short question which arises in the present revision is whether the final appellate order passed in appeal under Section 104 or Order 43 Rule 1, CPC is an 'order in the course of a suit' within the meaning of these words in the Proviso and therefore, a revision against such order would not be maintainable.
5. The aforesaid proviso has been considered in great detail in Sawal Singh v. Ram Sakhi, 2002(4) M.P.H.T. 200 = 2002(11) MPJR 169, and the following three conclusions have been drawn in para 15 which form the ratio of the decision :--
(a) The revisional jurisdiction under Section 115 of the Code is available against:
(i) the order deciding finally the suit or other proceedings where no appeal is provided; and
(ii) where effect of order in the revision would finally dispose of the suit or other proceedings.
(b) The revisional jurisdiction will not be exercised in respect of all other orders 'deciding any case' in the course of suit or other proceedings, though there may be any error, defect, irregularity or illegality in exercise of jurisdiction, where allowing the revision would not finally dispose of the suit or other proceedings,
(c) all the pending revisions on 1-7-2002 will be decided as per the amended provisions of Section 115.
6. I am in full and respectful agreement with my learned and noble brother K.K. Lahoti, J., in respect of all the three propositions of law given above. But the elucidation or clarification of the law already laid down is permissible by the same Bench and also by any co-ordinate Bench.
7. The word 'order' occurs thrice in the Proviso. It has to be ascribed the same meaning in all the three placed. It is indisputable that any order made 'in the course of a suit' would be an interim or interlocutory order. The suit commences with the presentation of the plaint and ends with the judgment and the decree. Any order passed in the course of the suit during its pendency would be an interim order. The same would be the position in the case of 'other proceeding' akin to that of a suit e.g. proceedings under the Indian Succession Act or the Arbitration Act. It is only the interim order in the course of a suit or other proceeding which is covered by the Proviso. The present Proviso was Proviso (a) before the Civil Procedure Code (Amendment) Act, 1999 and after the Amendment Act of 1976. Mulla in his Commentary on CPC 15th Edition Vol. I Page 824 has stated: 'The proviso deals with interlocutory orders only'. In Sawal Singh 's case also it has been unequivocally held in paras 9 and 10 that the effect of the amendment is that the 'interim orders' which have been passed in the course of a suit or other proceeding the High Court will not exercise its revisional jurisdiction in respect of those orders. Similarly in Phool Singh v. Mavla, 2002(3) M.P.H.T. 383 = 2002(11) MPJR 157, it has been held after making a reference to the report of the Malimath Committee, the Statements of Objects and Reasons and the 'Notes on Clauses'; that the scope of interference against interlocutory order has been restricted. Therefore, it can be held without dilating further that the Proviso envisages interim orders only which have been made in the course of a suit or other proceeding.
8. The word 'order' used in the Proviso further covers non-appealable orders only. It does not cover appealable orders. There was already Sub-section (2) of Section 115 which provides that 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 sub-ordinate thereto. The sub-section is mandatory and it prohibits the exercise of revisional power to vary or reverse an order which is appealable. There was already a legislative injunction against the exercise of revisional power against an appealable order. The revision against the appealable order was hit by Sub-section (2) and therefore the appealable order could not be included in the word 'order' used in the Proviso in order to its being further hit by the Proviso. It follows that the word 'order' in the Proviso does not include in its ambit appealable orders.
9. Thus, the meaning of the word 'order' which has been used three times in the Proviso is 'interim non-appealable order'. In respect of such an order an exception has been carved out in the Proviso and that exception is that if this order had been made in favour of the party applying for revision it would have finally disposed of the suit or other proceedings. The interim non-appealable orders coming within the exception would be revisable by the High Court. Such orders may be on the question of limitation, jurisdiction and bar of any law etc.
10. The appellate order in an appeal under Section 104 or Order 43 Rule 1, CPC cannot by any stretch of imagination be included within the ambit of the word 'order' used in the Proviso. As already demonstrated the interim appealable order falls outside the scope of the Proviso. If the appealable order is not covered by the word 'order' used in the Proviso then naturally the order passed in appeal against such appealable order would also not be covered in its fold. The orders of temporary injunction under Order 39 Rules 1 and 2, the orders relating to attachments before judgment under Order 38 Rules 2, 3 and 6 and the order appointing a Receiver under Order 40 Rules 1 and 4, CPC and other orders are appealable. The final appellate order in such appeals cannot be said to be an order made 'in the course of a suit or other proceeding' and therefore a revision against the final appellate order is not barred by the Proviso. The original order of the Trial Court which is appealable merges in the order of the Appellate Court and for the purpose of deciding whether the appellate order is revisable under Section 115, CPC or not the order which is to be seen is the appellate order. The appeal in which the appellate order is passed is covered by the word 'case' used in the opening part of Sub-section (1) of Section 115. If there is jurisdictional error or infirmity of the kind specified in clauses (a) to (c) of this sub-section then a revision against such appellate order would lie.
11. It has been held by the Supreme Court in Mahadeo v. Pune Municipal Corporation, (1995) 3 SCC 33, that the bar under Section 115(2), CPC is to exercise revisional powers where the party is provided with a right of appeal to the High Court or to the Sub-ordinate Court against the impugned order. 'It is not a bar to exercise revisional power under Section 115(1) against the appellate order'. Similarly in Kadiyala Rama Rao v. Gutala Kahna Rao, (2000) 3 SCC 87, it has been held that legislative change introduced in Section 115 (by the Amendment Act, 1976) is clear enough to indicate that an order passed by a Court sub-ordinate to the High Court in its appellate jurisdiction, if it is not appealable, would be within the ambit of Section 115 of the Code and thus a revisional application would be maintainable. In Shyam Sunder v. Union of India, AIR 1996 SC 1321, it has been observed that a revisional application before the High Court against appellate order passed under Section 39 of the Arbitration Act is maintainable. Even if a special statute expressly attaches finality to an appellant order passed under the statute, such provision of finality will not take away revisional powers of the High Court under Section 115 of the Code of Civil Procedure.
12. It was thus well settled that the revision under Section 115(1) was maintainable against the final appellate order if the conditions provided therein were satisfied and this legal position is not altered by the Proviso.
13. The matter can be examined from a different angle. Section 105(1) provides that 'save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal'. It is clear from this provision that if a party feels aggrieved from an interim order passed 'in the course of a suit' which may affect the ultimate decision he has a right to assail that order in the appeal. The proviso to Section 115(1) defers or postpones the remedy of assailing the interim order in the ultimate appeal and, therefore, he is saved from the injustice which might arise to him. Instead of challenging the interlocutory order passed in the course of the suit by invoking the revisional jurisdiction of the High Court under Section 115(1) which is barred he can challenge that order in appeal. But he cannot assail an order passed in appeal under Section 104 or Order 43 Rule 1, CPC in the appeal against the decree passed in the suit. Therefore, it could not be the legislative intent to take away the remedy of revision against the final orders passed in appeal under Section 104 or under Order 43 Rule 1, CPC and such orders cannot be said to be covered by the Proviso.
14. It is pointed out by the learned Counsel for the respondent No. 3 that as per para 16 of the order in Sawal Singh's case (supra) two revisions against the appellate order under Order 43 Rule 1, CPC were dismissed. As already stated this Bench does not dissent or disagree with the law laid down in that case which has been neatly summed up in para 15 of the Order. It is axiomatic that a decision is an authority for the question of law which it decides. The ratio of a case is the principle which has been decided and not the actual decision. The ratio decidendi alone has the precedential efficacy. A decision is not a-precedent on a proposition of law which it did not decide. It has been stated in Orient Paper Industries Ltd. v. State of Orissa, AIR 1991 SC 672 : 'What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. The doctrine of precedent, that is, being bound by a previous decision, is limited to the decision itself and not as to what is necessarily involved in it. In recent Constitution Bench decision in Executive Engineer v. N.C. Budharaj, (2001) 2 SCC 72, it has been observed that the ratio or the basis of reasons and principles underlying a decision is distinct from the ultimate relief granted or manner of disposal adopted in a given case. In view of this legal position the decision in Sawal Singh's case (supra) is not an authority on the question which has arisen in the present petition, that is whether the appellate order in appeals under Order 43, Rule 1, CPC is an order made 'in the course of a suit or other proceeding'. The decision in the present revision is on a different point. It is on a different aspect or facet concerning the applicability or non-applicability of the Proviso. The view taken by me in this case is not in any way in conflict with the questions of law decided in the earlier case. In State Financial Corporation v. Jagdamba Oil Mills, 2002 AIR SCW 500, it has been observed that circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper. The words of Lord Denning have been quoted with approval in this case which have become locus classics : 'Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive.'
15. The answer to the question referred to above in para 4 is that the final appellate order passed in appeal under Section 104 or Order 43 Rule 1, CPC is not an order 'in the course of a suit or other proceeding' and therefore, a revision against such appellate order is not barred by the Proviso to Section 115(1), CPC.