- In the case of Kailash Chandra Panda and ors. vs. State of Orissa and ors. the Orissa HC has held that a revision petition under section 115 of the Code of Civil Procedure (CPC) is not maintainable before the HC against the order of the District Court which is passed in its appellate or revisional jurisdiction. It was clarified that the order must have been made under ‘original jurisdiction’ to attract the applicability of section 115 CPC.
- In the instant case, the petitioners had filed a civil suit valued at Rs.49,000 in the Court of Civil Judge, Dharamgarh for the declaration of their right, title and interest and confirmation of possession over the suit scheduled tank. They also prayed for declaration of their right to fish, water for irrigation purposes and possession of the tank. They also prayed for a permanent injunction against the opposite parties so as to prevent them from interfering with the possession and ownership of the plaintiffs. The said suit was decreed.
- The respondents challenged the judgement and decree by way of a regular first appeal before the ADJ, Dharamgarh along with a petition under section 5 of the Limitation Act for the condonation of delay. The application under section 5 for the condonation was allowed, and the present civil revision petition was filed challenging the same.
- The Counsel for the petitioners had contended that the order in question was clearly covered by the phrase ‘other proceedings’ appearing in section 115 CPC, and the said order cannot be said to be an order passed in appeal as no appeal exists in the eyes of law unless the petition under section 5 of the Limitation Act is allowed, and the delay is condoned. Thus, he was of the opinion that the present revision petition is maintainable.
- In support of his arguments, the Counsel for the petitioner relied upon the decision of the Apex Court in Vishnu Awatar vs Shiv Awatar and ors (1980) SCC and the decision of the Orissa HC in Smt. Banarasi Devi Saha vs Basudev Lal Dhanuka (1992) OJD.
- The Orissa HC relied upon the decision of the Apex Court in Vishnu Awatar’s case wherein it was held that the phrase ‘other proceedings’ occurring in section 115 of CPC can only mean proceedings of an original nature and it would not cover decisions pronounced in appeal or revision.
- While referring to the language of section 115 of the Code of Civil Procedure (Amendement) Act, 1978 which is almost in pari materia with the provisions of section 115 of CPC as in force in Orissa, the SC clearly pronounced that the decision of the District Court rendered in appeal or revision are beyond the revisional jurisdiction of the HC.
- Relying upon the decision of the Orissa HC in Banarasi Devi Saha vs Basudev Lal Dhanuka (1992) the Court observed that where the District Court acts in the exercise of its original jurisdiction, the HC’s revisional power will come into play.
- To the contention of the petitioner that the order allowing for the condonation of delay cannot be construed to have been passed in appeal, the Court held that a limitation petition has no independent existence bereft of appeal. Thus the order passed therein cannot be segregated from the appeal, and it cannot be said that the order passed in the limitation petition was passed in any independent or original proceeding.
- Thus, the present revision petition was dismissed.
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