Putaboyina Suryaprakash Rao, ... vs Nadella Purnachandra Rao, ...
2022 Latest Caselaw 8334 AP

                                                                            BSS,J
                                                 C.R.P.Nos.3927 and 3936 of 2015
                                            1

                    HON'BLE SRI JUSTICE BANDARU SYAMSUNDER

                           C.R.Ps.Nos.3927 and 3936 of 2015
COMMON ORDER:


           These Civil Revision Petitions arising out of orders passed in two

execution          applications   in   an   execution    petition   filed   by   first

respondents in both petitions in E.P.No.18 of 2008 in O.S.No.14 of 2008

dated 09.07.2015 on the file of 1st Additional District Judge,

Machilipatnam, Krishna District, can be disposed of by common order

wherein and whereby claim petitions filed by first respondents in the

civil revision petitions under Section 47 read with Order XXI Rules 97,

98, 101 and Section 151 CPC allowed by the Court below.

2. When the matter is taken up for hearing, learned counsel for

respondents would submit that revision petition is not maintainable

against the orders passed by the Court below in a petition filed under

Section 47 read with Order XXI Rules 97, 98, 101 and Section 151 CPC in

view of ratio laid down by Full Bench of this Court in Gurram

Seetharam Reddy Vs. Gunti Yashoda 1 . For which, learned Senior

Counsel for revision petitioners submitted that the revision petitions

can be converted as first appeals, which also permissible under law.

This Court proceeded to hear both sides on the point that whether

revision petition can be converted into first appeal?

2004(6) ALD 175 (FB) BSS,J C.R.P.Nos.3927 and 3936 of 2015

3. The learned Senior Counsel for revision petitioners would submit

that grounds on which first appeal has to be filed are similar to the

grounds which they mentioned in the revision petition and it is

permissible under law to convert civil revision petition into first appeal.

He relied on following precedent law:

(1) Om Prakash and Others - Appellants Vs. Dwarka Prasad

and Others - Respondents2 , wherein it is held that revision could be

converted into appeal suit if substantial question of law exists and if the

same is filed within prescribed time limit.

(2) Narendra Kumar Mehta - Appellant Vs. Smt.Suraj Mehta -

Respondent 3 , wherein it is held that when there is no provision for

filing appeals, High Court may exercise its revisionary jurisdiction under

Section 115 of Civil Procedure Code and treat the appeals as revisions.

(3) The Reliable Water Supply Service of India - Appellants Vs.

Union of India (UOI) and Others - Respondents 4 , wherein Hon'ble

Apex Court observed that High Court was right in converting the appeal

into a revision.

(4) Bahori - Applicant Vs. Vidya Ra - Opposite Party5, wherein

it is held that there is no specific provision for conversion of an appeal

into a revision as vice versa. Consequently, the exercise of power has

MANU/MP/0442/2004 = AIR 2005 MP 40

AIR 1982 AP 100

AIR 1971 SC 2083

AIR 1978 ALLAHABAD 299 BSS,J C.R.P.Nos.3927 and 3936 of 2015

to be only under the provisions of Section 151 of CPC. The inherent

powers of the Court permit the Court to make such orders as may be

necessary to meet the ends of justice. The power is undoubtedly

discretionary and is to be exercised in a proper case. If the interest of

justice requires the passing of such an order or to prevent the abuse of

the process of the Court, the Court is fully justified in passing of an

order under this provision.

4. The learned counsel for the respondents would submit that there

is specific provision for filing appeals before the Court under Section 96

and Order XLI of Civil Procedure Code, due to that when civil revision

petition is filed, it is not permissible to convert the same into first

appeal and it has to be looked into whether it is filed within time. He

relied on following decisions:

(1) Order of this Court in C.R.P.No.21297 of 2017, wherein this

Court after accepting the representation of revision petitioner therein

and also after considering Order 43 Rule 1(ja) of Civil Procedure Code

permitted to file Civil Miscellaneous Appeal by giving benefit under

Section 14 of Limitation Act, but not converted civil revision petition

into first appeal.

(2) M/s.Lakshmiratan Engineering Works Ltd - Appellant Vs.

Assistant Commissioner (Judicial) I, Sales Tax, Kanpur Range, BSS,J C.R.P.Nos.3927 and 3936 of 2015

Kanpur and another - Respondents 6 , wherein Hon'ble Apex Court

while discussing precedent law held that even under Order 41 of the

Code of Civil Procedure, the expressions "appeal" and "memorandum

of appeal" are used to denote two distinct things. In Wharton's Law

Lexicon, the word "appeal" is defined as the judicial examination of

the decision by a higher Court of the decision of an inferior Court. The

appeal is the judicial examination; the memorandum of appeal contains

the grounds on which the judicial examination is invited. For purposes

of limitation and for purposes of the rules of the Court it is required

that a written memorandum of appeal shall be filed.

(3) Vishesh Kumar - Appellant Vs. Shanti Prasad-Respondent7,

wherein it is held that petition filed under Section 115 CPC cannot be

converted into one under Article 227 of Constitution of India and it is

also held that a revision petition under Section 115 of CPC is a separate

and distinct proceedings from a petition under Article 227 of the

Constitution. We are unable to accept that prayer. A revision petition

under Section 115 CPC is a separate and distinct proceedings from a

petition under Article 227 of the Constitution, and one cannot be

identified with the other.

AIR 1968 Supreme Court 488

AIR 1980 SUPREME COURT 892 BSS,J C.R.P.Nos.3927 and 3936 of 2015

(4) Shiv Shakti Co.op. Housing Society, Nagpur - Appellant Vs.

M/s. Swaraj Developers and others - Respondents 8 , wherein it is

explained powers of the Court under Section 115 CPC prior and

subsequent to amendment of Civil Procedure Code. It is held that right

of appeal is a substantive right, but there is no such substantive right in

making an application under Section 115 CPC.

He prays to dismiss the Civil Revision Petitions.

5. In view of rival submissions, now point that emerges for

consideration by this Court is: Whether Civil Revision Petitions filed

under Section 115 CPC can be converted as appeal suits?

6. POINT: Before going to the merits of the case, it would be

beneficial to quote Section 115 CPC and Order 41 CPC, which reads as

under:

"Section 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,

AIR 2003 SUPREME COURT 2434 BSS,J C.R.P.Nos.3927 and 3936 of 2015

the High Court may make such Order in the case as it thinks fit:

1[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.]

(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.

1[(3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding 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."

Order 41: "Form of appeal, What to accompany memorandum"

(1) Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of Judgment:

Provided that where two or more suits have been tried together and a common Judgment has been delivered therefor and two or more appeals are filed against any decree covered by that Judgment, whether by the same appellant or by different BSS,J C.R.P.Nos.3927 and 3936 of 2015

appellants, the Appellate Court may dispense with the filing of more than one copy of the Judgment.

(2) Contents of memorandum- The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative; and such grounds shall be numbered consecutively.

(3) Where the appeal is against a decree for payment of money, the appellant shall, within such time as the Appellate Court may allow, deposit the amount disputed in the appeal or furnish such security in respect thereof as the Court may think fit."

7. It is not in dispute that petitioner herein is decree-holder, who

filed execution petition wherein first respondents filed claim petitions

under Section 47 read with Order 21 Rules, 97, 98 and 101 of Code of

Civil Procedure, those are allowed.

8. The Hon'ble Apex Court in Shiv Shakti Co-op.Housing Society's

case relied on by learned counsel for the respondent (referred supra)

categorically held that first aspect that has to be considered is the

respective scope of appeal and revision. It is fairly a well settled

position of law that the right of appeal is a substantive right. But there

is no such substantive right in making an application under Section 115

CPC, wherein Hon'ble Apex Court explained the scope of Sections 96

and 100 CPC and Order 41 CPC and also Section 115 CPC. Even Hon'ble

Apex Court in Vishesh Kumar's case (referred supra) held that petition BSS,J C.R.P.Nos.3927 and 3936 of 2015

filed under Section 115 CPC cannot be converted into petition under

Article 227 of the Constitution of India. The Hon'ble Apex Court (Full

Bench) in M/s.Lakshmiratan Engineering Works Ltd's case (referred

supra) explained what should be contained in appeal as per Order 41 of

Civil Procedure Code and Scope of Order 41 CPC. The Full Bench of this

Court in Gurram Seetharam Reddy's case (referred supra) while

examining in detail with regard to maintainability of civil revision

petition against the orders passed under Order 21 Rule 58(4), 98 and

100 of Civil Procedure Code held that :-

"a) Against the orders passed under Rule 58(3) and Rules 98 and 100 of Order 21 C.P.C. regular appeals under Section 96 and not miscellaneous appeals under Section 104 read with Order 43 Rule 1 CP.C. are maintainable and that the judgment of this Court in B. Nookaraju Vs. M.S.N.Charities(AIR 1994 AP 334) does not represent the correct position of law.

b) The Court fee payable on such appeals shall be the one calculated in accordance with Articles 11(i) or 3(i) of Schedule II of Court Fees Act, as the case may be read with Section 49 of the A.P. Court Fees and Suits Valuation Act.

c) A second appeal under Section 100 C.P.C. is maintainable against an order passed in an appeal, arising out of order passed under Rule 58(3) or Rules 98 and 100 of Order 21 C.P.C."

9. In the above referred case, Full Bench of this Court not converted

the Civil Revision Petition into appeal, but dismissed the revision

petition as it is not maintainable giving liberty to the petitioners therein

to avail the remedy of appeal under Section 96 CPC against the orders BSS,J C.R.P.Nos.3927 and 3936 of 2015

of the executing Court duly availing the benefit of Section 14 of the

Limitation Act.

10. Though learned Senior Counsel for revision petitioners would

submit that as per ratio laid down by Division Bench of Madhya Pradesh

High Court converting the revision petition into first appeal is

permissible, in view of ratio laid down by Full Bench of this Court in

Gurram Seetharam Reddy's case (referred supra), this Court unable

to follow the ratio laid down by Hon'ble Madhya Pradesh High Court.

The ratio laid down in other two decisions relied on by learned Senior

Counsel are not pertaining to conversion of civil revision petitions into

appeal suits, but those are pertaining to converting the appeal into

revision. As Hon'ble Apex Court in M/s.Lakshmiratan Engineering

Works Ltd's case (referred supra) and Shiv Shakti Co.op. Housing

Society, Nagpur's case (referred supra) explained the distinction

between first appeal under Section 96 and second appeal under Section

100 CPC with that of Section 115 CPC, this Court is unable to accept the

contention of learned Senior Counsel for revision petitioners that it is

permissible to convert civil revision petition into first appeal. The

scope of consideration of appeal suit, which is statutory right is entirely

different from scope of consideration of civil revision petition. It

cannot be equated with each other in view of language employed in

both provisions and also in view of ratio laid down by the Hon'ble Apex BSS,J C.R.P.Nos.3927 and 3936 of 2015

Court in the above referred decisions. Therefore, this Court is of an

opinion that it is not permissible to convert the Civil Revision Petitions

into Appeal Suits.

11. In the result, both the Civil Revision Petitions are dismissed and

petitioners shall be entitled to avail the remedy of appeal under Section

96 CPC against the orders of executing Court in E.A.No.4 of 2010 and

E.A.No.5 of 2010 duly availing the benefit of Section 14 of Limitation

Act. No order as to costs. Consequently, miscellaneous petitions

pending if any in both the revision petitions, shall stand closed. The

interim orders if any granted earlier, shall stand vacated.

______________________ BANDARU SYAMSUNDER, J Dt:04.11.2022.

Rns BSS,J C.R.P.Nos.3927 and 3936 of 2015

HON'BLE SRI JUSTICE BANDARU SYAMSUNDER

C.R.Ps.Nos.3927 and 3936 of 2015

Date: 04.11.2022

Rns BSS,J C.R.P.Nos.3927 and 3936 of 2015