The High Court does not have jurisdiction to entertain a revision petition under Section 115, C.P.C. against an order that is appealable to a Court subordinate to it.

ORDER:- In this application under Section 115 of the Civil P.C. read with Art. 227 of the Constitution of India, the petitioner has challenged an order of the Munsiff (I) Morigaon made on 2-2-1993 in Misc (J) Case No.75 of 1992 arising out of Title Suit No. 27 of 1992 granting ad interim injunction under O.39, R.I, C.P.C.

2. Mr. A. M. Mazumdar, learned counsel for the opposite party-I, has submitted that the impugned order is appealable to the District Court and, therefore, no revision lies to the High Court under Section 115, C.P.C.

3. In the present case, the Munsiff made the impugned order under Order 39, Rule (1), granting interlocutory injunction. Such an order is appealable under Order 43, Rule 1(r). However, an appeal shall lie to the District Court and not to the High Court, and no second appeal shall lay to the High Court in view of Section 104(2), C.P.C.

4. The question which arises for consideration is whether the High Court under Section 115, C.P.C., is competent to exercise its power in respect of an order from which an appeal shall lie to a Court subordinate to it. The relevant portion of sub-section (1) of Section 115 may be extracted thus :

"(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto......." (Empahsis added)

Sub-section(2) of section 115, C.P.C., reads: "The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto."

5. In Vidya Vati v. Devi Das, AIR 1977 SC 397, the Supreme Court has, while considering the words" no appeal lies thereto" employed in sub-section (1) of Section 115, C.P.C., held -

"Now, there can be no doubt that under Section 115 of the Civil P.C. a revision application can lie before the High Court from an order made by the Subordinate Court only if no appeal lies from that order to the High Court."

In that case, Sub-Judge allowed a review application, and against the order allowing the review was appealable to the District Court and not to the High Court. Therefore, the decision of the Supreme Court cited above clearly lays down that mere fact that an order is appealable to a Court other than High Court is no bar to the exercise of the power of a High Court under S. 115.

6. The above decision was made before the Amending Act of 1976. By the Amendment Act of 1976, sub-section (2) was added. sub-section (2) provides that in revisional jurisdiction no order or decree can be reversed when appeal lies to the High Court or to the Subordinate Court. According to sub-section (1), even if appeal lies to the Subordinate Court an order is revisable in view of the decision of the Supreme Court referred to above. But, according to sub-section (2), if an order is appealable to the Subordinate Court the order or decree cannot be reversed. It, therefore, appears that sub-section (2) is inconsistent with sub-sec.(1). If there is inconsistency in same section, the Court will make an endeavour to give both effect, if possible. In Madanlal Fakirchand v. Changdeo Sugar Ltd., AIR 1962 SC 1543 (1551),the Supreme Court has, while dealing with subsections (1) and (2) of the Companies Act of 1963, observed :

"The two sub-sections must be read as parts of an integral whole and as being interdependent; an attempt should be made in construing them to reconcile them if it is reasonably possible to do so, and to avoid repugnancy".

In that view of the matter, the rule of harmonious construction is attracted, that is, effect should be given to both. If harmonious construction is not possible., doctrine of leges posteriores priores contrarias abrogant (later laws abrogate prior laws that are contrary to them) shall apply, that is to say, sub-section (2), which had been added by the Amending Act, 1976, shall prevail over sub-section (1).

7. There is a distinction between an appeal and a revision. A right to