The main legal point established in the judgment is that a revision petition under Section 115, Civil P.C. is not maintainable against an order passed under Section 144, Civil P.C., and cannot be returned for presentation in the form of an appeal to a Court subordinate to it.

ORDER :- This revision petition is directed against the order passed by the Munsiff, Yadgir, on 5-7-1972 in Misc. Case No. 12/1971 rejecting the application filed by the petitioner herein presumably under Section 144, Civil P.C. The relief sought in that application was to direct the respondent-landlord to refund the amount of rent drawn by him which the petitioner had deposited as per the orders of the Court passed in the eviction proceedings initiated on a petition filed by the respondent against him on the ground that he was in arrears of rent.

2. The trial Court ultimately allowed the petition filed by the respondent and passed an order of eviction against the petitioner on the said ground, and the District Judge, Gulbarga, confirmed that order. But, this Court, in revision, set aside both the orders and remitted the case to the trial Court to dispose of the matter afresh, and it was thereafter the application out of which this revision petition arises was filed.

3. Sri Muralidhar Rao learned counsel for the respondent raised a preliminary objection regarding the maintainability of this revision petition. He

contended that the impugned order purports to be one passed under Section 144, Civil P.C. and that no revision under Section 115, Civil P.C. lies against it.

4. Sri Manohar Rao Jagirdar learned counsel for the petitioner did not dispute the correctness of the above contention, and indeed he conceded that no revision lies against such an order. But, what be submitted was that instead of dismissing this revision petition on the ground of non-maintainability it may be returned to the petitioner for being presented in the form of an appeal before the Civil Judge.

5. Now the question is whether the said prayer of Sri Jagirdar can be countenanced. In support of his submission that such a prayer is tenable even though the revision petition is not maintainable, Sri Jagirdar relied upon the following passage in Vishnumoorthi v. Rudra Shedthi, (1973) 2 Mys LJ 395 (399) : (AIR 1974 Karnatak 41) :

"8. The above discussion will necessarily lead to the conclusion that this revision petition is not maintainable. I have no doubt in my mind that the petitioners have bona fide pursued their remedy in a wrong forum, viz. this Court. Instead of filing an appeal, before the Court of Civil Judge, the petitioners have, under a bona fide impression that a revision is competent, filed this revision petition. The petitioners cannot be blamed for approaching this Court instead of preferring an appeal to the Court of Civil Judge. The wordings employed by the Court of first instance themselves were responsible for this situation. Instead of the Munsiff holding that the suit has abated against defendants 2 and 3, if he had dismissed the suit on the ground that the necessary parties are not before him, the petitioners would have been posted with the information that a decree dismissing their suit has been passed and that the remedy available to them is to prefer an appeal to the Court of Civil Judge. The petitioners, in these circumstances, should not be penalised for no fault of theirs in approaching this Court in revision, instead of filing an appeal to the Court of the Civil Judge.

9. For the reasons stated above. I direct that the memorandum of revision petition be returned to the petitioners for being presented as a memorandum of regular appeal in the Court of the Civil Judge, accompanied by appropriate court-fee. The petitioners shill be entitled to make an appropriate application for condonation of delay and I have no doubt that the application will be dealt with in accordance with law. No costs."

And further submitted that this C.R.P. also may be disposed of on the same lines. I do not think it is possible to accede to the said submission. No doubt in the case relied upon by Sri Jagirdar this Court despite holding that the revision petition was not maintainable ordered the same to be returned for being presented as a memorandum of regular