1. The present Civil Revision Application u/s.115 of the Code of Civil Procedure has been preferred by the petitioner herein – original opponent to quash and set aside the impugned order dated 19/10/2001 passed by learned Civil Judge (S.D.), Porbandar below Exh.4 in Misc.Civil Application No.272 of 2001, by which, learned Trial Court has partly allowed the said application by directing the opponent herein to deposit Rs.2,47,383/- (decreetal amount as per the judgement and decree passed in Special Civil Suit No.37 of 1995) in three installments and further directing that on deposit of the first installment, the electricity connection of the respondent be reconnected/restored.
2. Ms.Maya Desai, learned advocate appearing on behalf of the petitioner herein – original opponent has vehemently submitted that as such when the Suit was disposed of and judgement and decree was passed in Special Civil Suit No.37 of 1995, the application below Exh.4 itself was not maintainable and, therefore, the impugned order passed by the learned Trial Court in application below Exh.4 in Misc.Civil Application No.272 of 2001 is absolutely without jurisdiction. Therefore, it is requested to quash and set aside the impugned order.
3. Mr.Hashim Qureshi, learned advocate appearing on behalf of the respondent herein has tried to support the impugned order by submitting that Misc.Civil Application No.272 of 2001 has been preferred under Section 144 read with Section 151 of the Code of Civil Procedure and, therefore, the same was maintainable. It is further submitted that as such the judgement and decree passed in Special Civil Suit No.37 of 1995 was consent decree and it was conditional decree and, therefore, learned Trial Court was justified in passing the impugned order.
4. Heard learned advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted that the petitioner herein instituted Special Civil Suit No.37 of 1995 against the respondent herein and one another for recovery of Rs.19,84,821.27 ps. with interest, which according to the plaintiff was due and payable under the supplementary bill. It is submitted that conditional decree came to be passed by learned Civil Judge (S.D.), Porbandar and learned Trial Court directed respondent herein – original defendant to pay the suit amount of Rs.19,84,821.27 ps., in the alternative amount fixed by the appellate authority along with interest at the rate of 30% per annum till realization. It appears that thereafter though the dispute before the authority was pending and the aforesaid amount was sought to be recovered, the respondent herein preferred Misc.Civil Application No.272 of 2001 before learned Trial Court purported to be done as per Section 144 read with 151 of the Code of Civil Procedure. In the said application, respondent herein submitted application Exh.4 for interim relief, which came to be partly allowed by the learned Trial Court by impugned order dated 19/10/2001. Therefore, short question, which is posed for consideration is whether Misc.Civil Application No.272 of 2001, in which, application Exh.4 was purported to be under Section 144 read with Section 151 of the Code of Civil Procedure, is maintainable or not. On bare reading of Section 144 of the Code of Civil Procedure, unless and until the judgement and decree passed by the learned Civil Court/ Trial Court is varied and modified by Civil Court, provisions of Section 144 of the Code of Civil Procedure would not be attracted. When the application purported to be u/s.144 of the Code of Civil Procedure is held to be not maintainable, the same cannot be maintainable in exercise of powers u/s.151 of the Code of Civil Procedure. Under the circumstances, learned Trial Court has materially erred in passing impugned order in application Exh.4 in Misc.Civil Application No.272 of 2001. Therefore, the impugned order passed by the learned Trial Court is without jurisdiction and the same deserves to be quashed and set aside.
5. If the respondent is of the opinion that judgement and decree passed by the learned Trial Court in Special Civil Suit No.37 of 1995 was conditional/consent decree and the same was required to be implemented, he may initiate appropriate proceedings before appropriate authority. However, such application under Section 144 read with Section 151 of the Code of Civil Procedure is not maintainable.
6. In view of the above, the application succeeds and the impugned order dated 19/10/2001 passed by learned Civil Judge (S.D.), Porbandar below Exh.4 in Misc.Civil Application No.272 of 2001 is hereby quashed and set aside. Rule is made absolute accordingly. No costs.
[M.R.SHAH,J] *dipti