Law: Civil Procedure Code (V of 1908)

Section: 115

(a) Civil Procedure Code (V of 1908)----------S. 115-Revision-Words "no appeal lies thereto"-Meaning-"Appeal" includes a second appeal-Decree or order passed by trial Court appealable to High Court either directly or after taking appeal before District Judge--Revision without availing of remedy by such appeal-Held, not competent-[S. Ghulam Shahbaz Shah v. Ch. Muhammad Siddiq P L D 1959 B J 10; Abdul Waheed v. Allah Din P L D 1960 Kar. 472 and Abdur Rashid v. S. Abdur Rahim P L D 1959 Lah. 806 overruled].The trend of judicial opinion is now to the effect that if a decree or an order, which is in the nature of a decree under the Code of Civil Procedure, has been passed by the Court of first instance, and it is appealable under the Code, then, whether the appeal lies immediately to the High Court or only after another appeal has been taken before the District Judge, the, revision would riot be competent. This view is also sound on general principles, for, if the framers of section 115 of the Code of Civil Procedure had been of the opinion that a revision would be incompetent only where an immediate appeal lay to the High Court, they would have used the word "from" and not "in" before the words "which no appeal lies thereto." To hold otherwise would lead to anomalous situations, for, a person would thereby be entitled to circumvent the ordinary procedure laid down for preferring an appeal or appeals, as the case may be. He would also be in a position to take advantage of his own negligence by not filing an appeal within the prescribed time. There is no reason why the word "appeal" used in section 115 of the Code of Civil Procedure should be given the restricted meaning of a first appeal. The words "no appeal lies thereto" are words of general import and there is nothing in the section to confine their operation only to first appeals. If this is not done, and an "appeal" is held to include a second appeal, then no difficulty is created by the word "thereto".On principle there can be no valid reason for barring the revisional jurisdiction only where an appeal lies directly to the High Court. To adopt such a narrow interpretation would lead to the result that a party…