ORDER :

This revision-petition is directed against the Order, dated 19.01.2015 in I.A.No.130 of 2009 in O.S.No.262 of 1988 on the file of Principal Senior Civil Judge’s Court, Rajahmundry filed under Section 144 of the Code of Civil Procedure, 1908 (for brevity ‘CPC’), whereunder the Trial Court ‘Partly Allowed’ the application, for restitution of possession of ‘C’ schedule property to the defendant No.2.

2. The Respondent No.1/judgment-debtor No.2 filed I.A.No.130 of 2009 before the original Court for restitution of the impugned property i.e., ‘C’ schedule property covered by decree in the partition suit i.e., O.S.No.262 of 1988, and the Trial Court after considering the evidence of both sides placed before it ‘Allowed’ the application since the said property was delivered in execution of the decree in the partition suit, which was later set-aside in O.S.No.68 of 1993.

3. The contention of the revision-petitioner, who is the decree-holder in the Partition suit, is that the property ordered for restitution, is not a part of ‘C’ schedule property covered by the partition suit and that it was not delivered in execution of the decree of the partition suit. The contention of the respondent No.1, who is the defendant in the partition suit and decree-holder in subsequent suit i.e., O.S.No.68 of 1993 on the file of I Additional Junior Civil Judge’s Court, Rajahmundry, whereunder the partition decree was set-aside, confirmed by the First Appellate Court and subsequently by this Court in second appeal is that the impugned property is part of ‘C’ schedule property of the partition suit and it was delivered to the revision-petitioner in execution of the decree of the partition decree.

4. The learned counsel for the revision-petitioner would submit that impugned property is property of the revision petitioner; plaint schedule of partition suit in respect of ‘C’ schedule property would disclose that the impugned property is not part of the decree covered by the partition suit and therefore, it was not delivered during the execution of the partition decree, but the Trial Court erroneously held that it is a part of the partition decree, and thereby committed material irregularity.

5. The learned counsel for respondent No.1, who is judgment-debtor No.2, would submit that the revision-petitioner was examined as a witness during the enquiry of the ‘Restitution Application’ as R.W.1 and in the cross-examination, it was admitted that the impugned property is covered by ‘C’ schedule property of the partition suit and later, in the Final Decree Petition proceedings, the Commissioner, in his Report identified the same as ‘C’ schedule property and subsequently in execution proceedings it was delivered to the revision-petitioner; and therefore, since the decree in the partition suit was set-aside subsequently in O.S.No.68 of 1993 filed by the respondent No.1, which was confirmed in the First Appellate Court and also in the Second Appeal by this Court in the Second Appeal No.969 of 2005, it was delivered to the respondent No.1.

6. The learned counsel for respondent No.1 would further submit that the revision is not maintainable since Order passed under Section 144 of CPC is a decree under Order II Rule 2 of CPC and therefore, only appeal lies as per Section 96 of CPC. In support of his arguments, he relied on a Judgment of this Court in Kavita Trehan vs. Balsra Hygiene Products Limited, (2) AIR 1995 SC 441.

7. In the light of above rival contentions, the point that would arise in the revision-petition is as under: -

“Whether a revision is maintainable against the Order and Decree passed under Section 144 of the Code of Civil Procedure, 1908?”

8. POINT: - It is an admitted fact that the revision-petitioner filed Partition suit in O.S.No.262 of 1988 on the file of Principal Senior Civil Judge’s Court, Rajahmundry; it was preliminarily decreed on 14.02.1989 and later final decree was passed; in execution of the said decree, ‘C’ schedule property was delive