"Whether, where it is open to a party to raise a ground of appeal under sec. 105 C.P.C. from the final decree or order with respect to any order which has been passed during the pendency of the case, it should be held that an appeal from that order lies to the High Court in the meaning of the term "in which no appeal lies thereto" appearing in sec. 115 of the Civil Procedure Code."

2. The facts, which have led to this reference, may be very briefly set out. There was a suit in the court of the Additional Civil Judge, Jaipur City, in which the defendant, who is the applicant in revision, raised the plea that the custom of preemption being contrary to the provisions of 19(1)(f) of the Constitution of India, should not be given effect to by the courts. The Additional Civil Judge heard arguments and decided the issue against the defendant and ordered the suit to proceed. Thereupon, the defendant came in revision to this Court. This revision came up for hearing on the 7th October, 1952 before a Bench at Jaipur. In the meantime, another Bench of this Court, to which I was a party, decided in Pyarchand vs. Dungarsingh (1) (1952 R.L.W. 342.) that before a revision is competent in this court, it has to be shown that no appeal lies from that order to the High Court whether directly or indirectly. If there is a direct appeal to the High Court, namely a first appeal, the revision will not be competent. Even if there is an indirect appeal, namely a second appeal or the order in question can be taken in either first or second appeal to the High Court by taking a ground of appeal under sec. 105, the High Court will not be competent to entertain a revision."

3. As the order, which was being called in question in revision could clearly be attacked by taking a ground of appeal under sec. 105 C.P.C. from the decree in the suit, it was urged before the Bench that the revision was incompetent and should be dismissed on that ground. Mr. Bhandari appearing for the applicant however urged that the view taken in Pyarchands case was not in line with the decisions of other High Courts in India, and should be reconsidered, as the point involved was of considerable importance. Thereupon, the Bench made a reference in terms which I have set out above.

4. Before I consider the terms of the section and the interpretation to be placed on them, I think it desirable to set out the history of sec. 115, as that will help in determining the meaning to be given to the words how in dispute. The Civil Procedure Code of 1859 did not contain any provision for the exercise of revisional powers by the High Court. No order, therefore, which! was not open to appeal directly or indirectly, and which could not be challenged under the provisions corresponding to the present sec. 105, could be looked into by the High Court, either because it could not(come before it at all or even if it did, it could not) be so challenged. It was perhaps felt that the absence of such power precluded the High Court from looking into the correctness of a number of orders, which, though of importance, could not be challenged under the provisions corresponding to the present sec. 105. So by sec. 35 of Act XXIII of 1861 the Sudder Courts were empowered to call for the records of any case decided in appeal by a Subordinate Court, and in which no further appeal lay, and revise the decision when the subordinate court appeared to have exercised a jurisdiction not vested in it. This power, however, did not also seem to be sufficient for it only enabled the High Courts to send for cases decided by the appellate courts. There remained however many orders passed by trial courts which could not be challenged directly or indirectly in appeal to the High Court, and no revision was possible by the High Court with respect to these orders. Consequently sec. 622 was introduced in the Civil Procedure Code of 1877, which was more or less