ORDER
Krishna Saran Shrivastav, J.
1. This order shall also govern the disposal of CRP 591 of 1996. Both these revision petitions are being disposed of at the admission stage.
2. The facts are as follows:
3. The petitioner in OS SR 733/1996 brought a suit for specific performance of the contract on the strength of the agreement of sale dated 5-2-1980 alleging that the respondent had agreed to sell his share in the joint property after partition. On 17-2-1983, a memorandum of partition was prepared and the petitioner was put in possession of the land which had fallen against the share of the respondent. It was agreed that the respondent shall execute and get the sale deed registered on demand by the petitioner who had already paid the entire consideration to the respondent.
4. Similarly, the plaintiff in OS SR 728/96 filed a suit for specific performance of the contract making almost similar allegations which had been made in the aforementioned suit OS SR 733/1996.
5. The lower Court distinguishing the case of Kalikiri Ramanujulamma v. Katakam Ramaiah Chetty and Ors., 1982 (2) ALT 86 held that as per the condition in agreement, sale deed was to be executed after partition. The partition was effected on 17-2-1983 and the petitioner was put in possession of the subject of dispute and because the date was fixed for specific performance of the contract and the sale deed was not executed, it amounted to refusal and as such the suit filed in 1996 has become barred by limitation and, therefore, rejected the plaint.
6. Similar order had been passed in the other OS SR 728/96 also.
7. Feeling aggrieved by the impugned orders, the plaintiff of each case has preferred the aforementioned revisions.
8. Sri B. Basith Ali Yavar, learned counsel of the respondent in both the revisions raised a preliminary objection that the revision is not maintainable because the impugned order has been passed under Order 7 Rule 11 (d) of the Code of Civil Procedure which order amounts to a decree within the meaning of Section 2(2) of the Code of Civil Procedure and, therefore, the impugned order is a final order against which an appeal lies and hence the revision should be dismissed as not maintainable.
9. Sri B. Sudhakar Reddy, learned counsel of the petitioner relying on Smt. Chamarin v. Mst. Budhiyarin, has urged that the impugned Order has not been passed on the plaint averments, but has been passed without noticing the defendant and as such it cannot be said that it is an order passed under Order 7 Rule 11 of the Code of Civil Procedure and, therefore, the impugned order is not a decree within the meaning of Section 2(2) of the Code of Civil Procedure. Relying on Mamuda Khateen v. Beniyan Bib and Ors., it has been further submitted on behalf of the petitioner mat similarly as an order rejecting the memorandum of appeal following rejection of an application Under Section 5 of the Limitation Act for condonation of the delay in filing the appeal is not a decree but an incidental order against which an application in revision Under Section 115 of the Code of Civil Procedure may lie but no appeal under Order 43 Rule 1 of the Code of Civil Procedure can be preferred, against an order of rejection of the plaint not under Order 7 Rule 11(d) no appeal lies and the revision is maintainable. On the law laid down in Kalakota Varalakshmi v. Kalakota Veerareddi, 1960 An.W.R. 270 it has been further urged that prerequisite of a decree is that the proceedings which result in adjudication should start in a suit. The adjudication Under Sections 9, 10, 11 and 13 of the Hindu Marriage Act are regarded as decrees only for the purpose of those sections and they cannot be treated as decrees within the meaning of Section 2(2) of the Code of Civil Procedure. The learned lower Court without noticing the respondent erroneously reached the conclusion that the suit is barred by limitation ignoring the plaint allegations and, therefore, it is not an order under Order 7 Rule 11 of the Code of Civil Procedure and, therefore, it is not a decree within the meaning of Section 2(2) of the Code of Civil Procedure. Placing reliance on the case of Guggalla Venkatanarapu Reddi v. Sadhanapu Pedda Reddmma and Ors., 1958(2)An.W.R.316 it has been submitted on behalf of the petitioner that it is only an adjudication that is made in a suit that would be a decree within the compass of Section 2(2) of the Code of Civil Procedure. Though the impugned order determines the rights of the parties, since the impugned order of adjudication does not satisfy the test of a decree, it does not amount to decree so as to attract the provisions of Section 2(2) of the Code of Civil Procedure. Lastly it has been contended that under Clause (b) of the proviso to Section 115 of the Code of Civil Procedure, the revision is maintainable because if the impugned order is allowed to stand, it would occasion failure of justice and shall cause irreparable loss to the petitioner.
10. In the case of Smt. Chamarin v. Mst. Budiyarin (2 supra), the suit was dismissed for non-compliance of the orders passed by the Court under Order 6 Rule 5 of the Code of Civil Procedure. A Division Bench of the Madhya Pradesh High Court held that since an order rejecting a plaint is treated as decree by legal fiction created by Section 2(2) of the Code of Civil Procedure, it must be confined to cases of rejection of plaint expressly provided in the Code of Civil Procedure and, therefore, it is clear that an order rejecting a plaint under Order 7 Rule 11 only amounts to a decree whereas rejection of the plaint on other grounds does not amount to a decree. It is further held in this case that Section 2(2)(b) shall not include ‘any order of dismissal for defaulf. There is no reason by the expression ‘dismissal for default’ should be construed narrowly so as to confine it to dismissal for default in appearance only. Thus, an order dismissing the suit for failure of the plaintiff to furnish particulars as envisaged under Order 6 Rule 5 of the Code of Civil Procedure comes within the expression and as such does not amount to a decree and, therefore, such an order is not appealable.
11. It would not be out of place to mention that in the opening paragraph of the grounds of the revision, the petitioner has pleaded that the impugned order has been passed under Order 7 Rule 11(d) of the Code of Civil Procedure. The case of Smt. Chamarin v. Mst. Budhiyarin (2 supra) has been overruled by a full Bench of the Madhya Pradesh High Court in the case of Budhulal v. Chhotelal, as has been rightly observed in the case of M.P. State Co-operative Land Development Bank Ltd. v. J.L. Chouksey, . Even otherwise the impugned order has been passed on the ground that the suit is not maintainable because it is barred by limitation. Under Order 7 Rule 11 the plaint is liable to be rejected if it is barred by any law and, therefore, it cannot be said that the impugned order has not been passed under Order 7 Rule 11 of the Code of Civil Procedure. It is altogether a different thing whether the impugned order is illegal or not because the point that has fallen for determination is whether the impugned order is appealable or revisable.
12. In the case of R. Shanmughavelu Pillai v R. Karuppannan Ambalam, AIR 1976 Madras 289 it has been held that rejection of a plaint on whatever ground is a ‘decree’ within the meaning of Section 2(2) of the Code of Civil Procedure. It is not limited to such cases wherein the plaint is rejected for reasons stated in Order 7 Rule 11 of the Code of Civil Procedure. Reliance has been placed for reaching this conclusion on the cases of Satyanarayanacharyulu v. Ramalingam, and Venkataramanis Radhakishen v. Wali Md, AIR 1956 Hyderabad 133. It has been opined that reading Section 2(2) of the Code of Civil Procedure, it is clear that it does not say the rejection of the plaint under Order 7 Rule 11 of the Code of Civil Procedure but on the other hand it generally states that decree will include rejection of plaint and, therefore, it is clear from the section itself that only appeal will lie against the rejection of the plaint and it is not limited to such cases wherein the plaint was rejected for reasons stated Under Order 7 Rule 11 of the Code of Civil Procedure. I am in respectful agreement with the aforesaid observation made in the case of R. Shanmughavelu Pilla v. R. Karuppannan Ambalam (8 supra) and hold that the definition of ‘decree’ Under Section 2(2) of the Code of Civil Procedure includes rejection of a plaint also and there appears to be a deliberate omission of the words under Order 7 Rule 11 of the Code of Civil Procedure and, therefore, even if it is assumed that the impugned order is not an order under Order 7 Rule 11 of the Code of Civil Procedure in the eye of law, rejection of the plaint comes within the definition of ‘decree’ for the reasons aforesaid.
13. In the case of Shamsher Singh v. N. Rajinder Prashad, AIR 1973 SC 284 it is held mat an order rejecting a plaint under Order 7 Rule 11 of the Code of Civil Procedure for non-payment of additional Court fees demanded is appealable as a decree.
14. Relying on Major S.S. Khanna v. Brig. F.J. Dillon , it has been held in the case of Albert D’Souza and Ors. v. The Divisional Controller and Deputy General Manager, Mysore State Road Transport Corporation, AIR 1975 Karn. 82 that rejection of plaint amounts to a decree and such decree is appealable Under Section 96 of CPC and under the provisions of the Karnataka Civil Courts Act, 1964. It has been further held in this case that although the decree is appealable to the High Court in second appeal, a direct revision petition against the decision of the trial Court is not maintainable. Thus, it appears that even in cases where from the decision in question an appeal lies to the Subordinate Judge, and the decision of such Subordinate Judge is appealable to the High Court, the High Court has no power to exercise its revisional jurisdiction.
15. The case of Mamuda Khateen v. Beniyan Bibi and Ors. (3 supra) is not applicable at all because in that case the application for condonation of delay filed Under Section 5 of the Limitation Act was dismissed and incidentally the appeal was dismissed as time barred and, therefore, it was held that revision lies Under Section 115 of the Code of Civil Procedure because the application was rejected and the memorandum of appeal was incidentally rejected. Such is not the case here.
16. The case of Guggalla Venkanarapu Reddi v. Sadhanapu Pedda Reddamma and Ors. (5 supra) and the case of Kalakota Varalakshmi v. Kakkota Veerareddi (4 supra) are not at all applicable to the case on hand for the simple reason that the former related to an order passed on an application under the provisions of Insolvency Act and in the latter the judgment was passed under the provisions of the Hindu Marriage Act. I am unable to understand how and why the aforementioned two cases were cited. The law laid down in those cases are not at all attracted to the facts of the case on hand.
17. Sub-section (2) of Section 115 of the Code of Civil Procedure 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 other Courts subordinate thereto. This provision has been inserted by the Amendment Act, 1976 with effect from 1-2-1977. Prior to the introduction of Sub-section (2) of Section 115 of the Code of Civil Procedure, the settled view was mat the revisional power of the High Court Under Section 115 of the Code of Civil Procedure was barred only in cases where appeal lay to the High Court and not in cases where appeal lay before any Court subordinate to the High Court. The amendment has made the provision clear and the position of law subsequent to the amendment is that no revision lies where an appeal lies either to the High Court or to any other Court subordinate thereto.
18. In view of what is discussed in the preceding paragraphs, if the contention of the learned counsel of the petitioner is accepted that the High Court can revise the impugned order under Sub-clause (b) of (proviso to Sub-section (1) of) Section 115 of the Code of Civil Procedure and if it is allowed to stand it would occasion failure of justice or cause irreparable loss to the petitioner, the provisions of Sub-section (2) of Section 115 of the Code of Civil Procedure shall become redundant. This argument has been advanced only to be rejected because it has no force in it.
19. The upshot of the aforesaid discussion is that no revision lies against the impugned order which is an appealable order because the order rejecting a plaint is a decree within the meaning of Section 2(2) of the Code of Civil Procedure which is an appealable order.
20. Considering the fact that instead of an appeal, a revision has been erroneously filed and the time will be against the appellant if he intends to prefer an appeal against the impugned order of rejection of the plaint, I hope that the trial Court will take into consideration the time taken by the petitioner in litigating the matter before a wrong Court in calculating the period of limitation and condone the delay occurred if the petitioner prefers an appeal with an application for condoning delay and decide the same according to law.
21. In result, both the revisions are dismissed as not maintainable. However, in the circumstances of the case, 1 leave the parties to bear their own cost of revision.