The petitioners/respondents/plaintiffs have filed this Revision Petition against the order in A.S.CFR.No.8866 of 2007, dated 17.7.2007, passed by the Learned Subordinate Judge, Tiruppur, in returning the memorandum of appeal filed by the revision petitioners herein.
2. The Learned Subordinate Judge, Tirupur has returned the memorandum of appeal filed by the revision petitioners herein on 17.7.2007 inter alia stating that "an order passed upon the petition under Order 21 Rule 97 of Civil Procedure Code is not a decree, by a final order against which no appeal is prescribed in Order 43 Rule 1 and hence the petitioners will have to seek relief only by preferring revision petition by the High Court and therefore, return the memorandum of appeal.
3. The Learned counsel for the revision petitioners urges before this Court that the order passed by the Learned Sub Judge, Tirupur in A.S.CFR.No.8866 of 2007 dated 17.7.2007 is an erroneous order and inasmuch as the order passed under Order 21 Rule 98 of Civil Procedure Code is to be treated as a decree only and an appeal lies since any order passed under Order 21 Rule 103 of Civil Procedure Code is not a revisable one and these legal aspects of the matter have not been adverted to and appreciated by the Trial Court in proper perspective which has resulted in miscarriage of justice and therefore, prays for allowing the Civil Revision Petition in furtherance of substantial cause of justice.
4. It is to be noted that the first respondent/abstractor has filed E.A.No.105 of 2006 in E.P.No.85 of 2005 in O.S.No.242 of 2004 on the file of Learned District Munsif Judge, Tirupur under Order 21 Rule 97 of Civil Procedure Code praying for issuance of an order that the decree obtained by the revision petitioners/plaintiffs in O.S.No.242 of 2004 will not bind him etc.
5. In support of the contention that as against the order passed in Order 21 Rule 97 of Civil Procedure Code, Execution Application No.105 of 2006, dated 11.11.2005 only an appeal lies and not revision petition, the Learned Counsel for the revision petitioners cites the decision in Arifa Begum Vs. Noorjahan Begum, 2008 (2) CTC 157, wherein it is held that "an order passed the Court under Order 21 Rule 98 of Civil Procedure Code, dismissing the petition filed by a third party to recognise her as an obstructor is an appealable one under Rule 103 of Order 21, of Civil Procedure Code and therefore, the revision is not held maintainable".
6. She also seeks in aid of the decision of Honourable Supreme Court in the case of (S.Rajeswari Vs. S.N.Kulasekaran and others), reported in 2006 (3) CTC at page 171, wherein it is held that "revision cannot be entertained by High Court against an order passed under Order 21, Rule 97 of Civil Procedure Code, as there is a clear prohibition under Section 115(2), Civil Procedure Code when an appeal is provided for under Rule 103."
7. On a careful consideration of the contentions advanced on behalf of the learned counsel for the revision petitioners and after going through the order passed by the Learned Subordinate Judge, Tirupur dated 17.7.2007 in returning the memorandum of appeal filed by the revision petitioners, this Court comes to the inevitable conclusion that the said order is clearly an unsustainable one in the eye of law, when as per Order 21, Rule 103 of Civil Procedure Code, there is an effective remedy of preferring an appeal, though the said appeal is not a regular one and viewed in that perspective, the Civil Revision Petition deserves to be allowed and accordingly, the same is allowed, thereby setting aside the order passed by the Learned Sub Judge, Tirupur in A.S.CFR.No.8866 of 2007, dated 17.7.2007.
8. In the result, the Civil Revision Petition is allowed. The order passed by the learned Sub Judge, Tirupur, dated 17.7.2007 is set aside. Resultantly, the revision petitioners are directed to take return of the original papers in un-numbered A.S.CFR.No.8866 of 2007 from this Court after substituting the same with a xerox copy and the Registry of this Court is directed to keep the said xerox copy for the purpose of record and after taking return of the said A.S.CFR.No.8866 of 2007 from this Registry, the revision petitioners are directed to re-present the same before the Learned Sub Judge, Tirupur, who in turn is directed to take the same on to his file and assign number to it and later to dispose of the same in the manner known to law, within a period of five weeks from the date of receipt of the copy of this order and to report compliance to this Court without fail.
9. With these observations, the Civil Revision Petition is allowed leaving the parties to bear their own costs considering the facts and circumstances.
To
1. The Subordinate Judge, Tirupur.
2.The Section Officer, Judicial Section, High Court, Madras.
(To watch and Report) aes