Andhra Pradesh High Court - Amravati

Sabbella Venkata Rama Reddy vs Patnala Durga Sai Subrahmanyam on 7 November, 2022

     HONOURABLE SRI JUSTICE SUBBA REDDY SATTI

                        I.A.No.3 of 2022
                               in
       CIVIL REVISION PETITION No.2070 of 2022


ORDER:

This civil revision petition is filed under Section 115 of

CPC assailing the order dated 20.09.2022 in E.A.No.29 of

2021 in E.P.No.5 of 2020 in O.S.No.43 of 2013 on the file of

IV Additional District Judge, East Godavari at Kakinada.

2. Third party to suit O.S.No.43 of 2013 filed E.A.No.29 of

2021 under Order XX1 Rule 99 and Section 47 of CPC, to

declare him as absolute owner of petition schedule property;

delivery of schedule property to 1st respondent as invalid and

to order for redelivery of petition A schedule property by

evicting the 1st respondent.

3. The revision petitioner, being 1st respondent contested

the said application.

4. By order dated 20.09.2022, the executing Court partly

allowed the petition declaring the petitioner as absolute

owner of petition A schedule property and directed the 1st

respondent (revision petitioner) to deliver vacant possession

of the same to the petitioner by issuing redelivery warrant in

respect of petition A schedule property. The claim in respect

of petition B schedule property was dismissed.

5. Aggrieved by the said order, the present civil revision

petition is filed under Section 115 of CPC.

6. Initially, Registry raised objections regarding

maintainability of revision under Section 115 of CPC.

7. Learned counsel for petitioner relied in the judgment

reported in AIR 1972 AP 223 DB and would contend the

revision is maintainable.

8. This Court overruled the objections raised by the

Registry by placing reliance on the said judgment and

directed to number the same. Accordingly, C.R.P.No.2070 of

2022 is numbered. This Court granted interim order on

14.10.2022 and the same is extended from time to time.

9. Third party, who filed E.A.No.29 of 2021 and,

succeeded before Executing Court in part, filed caveat before

this Court. However, the name of the counsel was not shown

in the cause list when the matter listed before the Court.

I.A.No.2 of 2022 was filed to vacate the interim order.

10. Since the caveat was not put up, this Court granted

interim order without noticing the caveat, as such learned

counsel for the respondent requested the Court to vacate the

interim order. In view of the same, learned counsel for

revision petitioner intended to advance arguments in the

main CRP. Civil revision petition listed in the caption of "For

Orders".

11. As the matter stood thus, I.A.No.3 of 2022 is filed under

Section 151 of CPC to grant permission to convert revision

into appeal under Section 96 of CPC.

12. In the affidavit filed in support of the petition, it was

contended interalia that since the dispute in question relates

to execution, initially revision was filed under Section 115 of

CPC. However, during the course of preparing for arguments,

after going through various judgments, it was advised to

convert the revision into regular appeal under Section 96 of

CPC, as such interlocutory application was filed.

13. Sri N.Siva Reddy, learned counsel for revision petitioner

relied on the judgment of the Madhya Pradesh High Court at

Gwalior in Omprakash and others Vs. Dwarka Prasad and

another1 and also judgment of the composite High Court of

Andhra Pradesh in K.Narender & Anr. Vs. K.Mallesh &

Ors.2.

14. In Omprakash's case (supra-1), a reference was made

to the Division Bench on question, whether revision can be

converted into appeal and vice versa. While ordering

reference, the Division Bench of the Madhya Pradesh High

Court at Gwalior held thus:

"9. In the case of Bahori Vs. Vidya Ram, AIR 1978 Allahabad 299, it is held that if revision is filed within limitation prescribed for appeal, then prayer for converting revision into appeal after expiry of period of limitation is maintainable. It is held that there is no specific provision for conversion of an appeal into a revision or vice versa. Consequently, the exercise of power has to be only under the provisions of Section 151 of the Code. The inherent powers of the Court permit the Court to make such orders as may be necessary for 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 would be fully justified in passing an order under this provision. It is further held that there is nothing like a period of limitation for making an application for conversion of an appeals into revision or vice versa. All

AIR 2005 MP 40

2005 (6) ALD 185 = 2005 SCC OnLine AP 779

that is required to be seen is if the appeal or the revision had been filed within the time prescribed for the filing of the appeal, or the revision, as the case may be. Even otherwise, there would be very few cases, were the conversion would be sought before the expiry of the period of filing the appeal. In most cases, the point would emanate after an objection had been filed or made by the other side. It would undoubtedly be open to the Court considering the question of conversion to satisfy itself that the prayer was bone fide and that there was no unusual delay.

15. However, in the case of Food Corporation of India (supra) it is held that in view of the amendment in Section 102 of the Code, second appeal was not maintainable being the suit valued less than Rs. 25000/- . Though the appeal was filed before 1-7-2002, it is held that second appeal was not maintainable. Further it is held that appeal cannot be converted into revision as the scope of both the sections is different. It may be mentioned that the Apex Court while considering the question of conversion of revision into second appeal has considered the question that revision can be converted into second appeal, if substantial question of law arise in the case. However, while converting appeal into revision, question of substantial question of law will not arise. It is true I that scope of appeal and revision is different, but the Courts have been permitting conversion of appeal into revision and revision into appeal. Therefore, rigid view that appeal cannot be converted into revision or vice versa will not be in the interest of justice. A litigant cannot be penalised on account of technical error or mistake committed by the counsel. To meet the ends of justice, revision can be converted into appeal or appeal can be converted into revision while exercising the discretion and if the following norms are fulfilled, then normally order of conversion of revision in to appeal or appeal into revision should be passed:

(i) When revision is converted into second appeal, then before passing the order of conversion, it is to be considered whether substantial question of law arises in the said case, if no substantial question of law arises in the case, revision cannot be converted into second appeal.

(ii) Revision can be converted into appeal if same is filed within time and there is no impediment of limitation. Limitation must be construed from the date of filing of the revision petition or appeal. If the revision or appeal so filed was within limitation, for conversion into appeal or revision, it is to be examined that the appeal or revision, as the case may be, so filed, on the date of institution, was within the limitation and if so, said permission can be granted.

(iii) There is no period of limitation for applying such conversion, but while exercising the powers of conversion, the Court would keep in mind whether appeal or revision, as the case may be, had been instituted within the period prescribed for such proceedings.

16. We are of the considered opinion that in the case of Food Corporation of India (supra) correct law has not been laid down. In this judgment, previous judgments on the point and settled position of law of this Court has not been considered. Ignoring the principle of "stare decisis" settled practise has been unsettled without considering previous judgments. We have considered the earlier views of this Court and the judgments of other High Courts and that of the Apex Court and we hold that in this case, revision can be converted into miscellaneous appeal. Application LA. 3963/03 is allowed and the office is directed to register this revision as miscellaneous appeal and list before appropriate Bench."

15. The above judgment of the Division Bench was followed

by the learned single Judge of the composite High Court of

Andhra Pradesh in K.Narender's case (supra-2) and held

thus:

"10. There is no specific provision in the Code of Civil Procedure for conversion of a revision into an appeal or vice versa. Therefore, the source of power for the Court is only under Section 151 of CPC. The inherent powers of

the Court thus permit for conversion of the proceedings under Article 227 of the Constitution to that of an appeal under the Code of Civil Procedure, since no express provision is available in procedural law for such conversion. This is done necessarily to meet the ends of justice. The power is undoubtedly discretionary and is to be exercised in proper cases. If the interest of justice requires passing of such an order or to prevent the abuse of process of the Court, the Court would be fully justified in passing an order under this provision i.e., Section 151 of CPC. In the peculiar facts and circumstances of this case, the conversion of a civil revision petition under Article 227 of the Constitution into that of an appeal under Order XLIII Rule 1(w) of CPC would not take away the so called valuable right of the respondents to object as to the limitation etc., since the revision itself was filed within 30 days from the date of the impugned order. In fact, it is fairly a well settled proposition in law that the right of an appeal is a substantive right, but there is no such substantive right in making an application under Article 227 of the Constitution. Article 227 of the Constitution is essentially the source of power for the High Court to supervise the subordinate Courts. It does not in any way confer a right on a litigant, aggrieved by the order of the subordinate Court, to approach the High Court for relief. The scope for making a revision under Article 227 of the Constitution is not linked with a substantive right. Therefore, to meet the ends of justice, the conversion of present civil revision petitions into that of appeals under Order XLIII Rule 1(w) of CPC is not a bar. The decisions relied upon by the learned Counsel for the 1st respondent are of no help in the peculiar facts and circumstances of these cases and also in view of the judgment in Jaleel Khan's case (3 supra). Therefore, the objection raised by the learned Counsel for the 1st respondent that after invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution, the civil revision petition cannot be converted into a regular appeal is not tenable."

16. Sri V.Sai Kumar, learned counsel for respondent would

contend that proceedings to file first appeal under Section 96

of CPC are different and hence, revision cannot be converted

into appeal under Section 96 of CPC.

17. In view of expressions in the above judgments and the

explanation offered by the revision petitioner, this Court is of

the considered opinion that there is no embargo to convert

the revision under Section 115 of CPC into appeal under

Section 96 of CPC. In fact, revision was filed on 13.10.2022

against the order dated 20.09.2022. The civil revision petition

was filed well within the time. Since the order is passed by

the IV Additional District Judge, East Godavari at Kakinada,