The High Court cannot interfere in revision under Section 115 of the Code of Civil Procedure with the placing of the onus by the trial court of a particular issue on one party or the other.

Falshaw, J.

1. The facts in this case are that a suit was instituted by L Union Fire Accident and General Insurance Co., Ltd., of New Delhi against two defendants O. P. Kapur and Ram Kapur for the recovery of Rs. 11,385/- on the basis of two promissory notes for Rs. 5,000/- and Rs. 6,000/.-. The plaintiffs case appears to be that the pro-notes were executed by O. P. Kapur defendant No. 1 in lieu of certain sums embezzled or misappropriated by him when he was in the employment of the plaintiff company, and the other defendant was impleaded as surety. The principal issue in the case framed by the trial Court is

"Whether the promissory notes for Rs. 5,000/- and Rs. 6,000/- were executed by defendant No. 1 for consideration."

The plaintiff company applied to the trial Court for the shifting of the onus on to the defendants to prove that the pronotes, the execution of which by defendant No. 1 has been admitted, were without consideration. A revision petition was filed in this Court challenging the order of the trial Court refusing to shift the onus. The case came before S. B. Capoor, J., on 29-3-1962, and since there were conflicting authorities he has referred to a larger Bench the question whether this Court can interfere under Section 115 Civil Procedure Code with the placing of the onus by the trial Court of a particular issue on one party or the other.

2. There are undoubtedly decided cases which can be cited to support interference in revision under Section 115 Civil Procedure Code by the High Court with almost any kind of an order which a subordinate Court can pass in the course of a suit, and there is equally no doubt that the High Courts in many of such interferences seem to have lost sight altogether of the limited scope of Section 115 the provisions of which read:-

"The High Court may call for the record of any case which has been decided by any Court subordniate to such High Court and in which no appeal lies thereto and if such subordinate Court appears - (a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it things fit."

It seems quite possible that the original intention of the legislature in drafting this section was that it was meant only to be applied in the case of decisions of subordinate Counts against which no appeal lay, and that in the opening part of this section the words case decided were used in the ordinary sense of a decision in a separate case. There is, however, no hope, short of a decision of the Supreme Court on the point, of ever returning to that position if that was indeed what was intended, and it is now well settled that a case decided can include certain kinds of interlocutory orders. It is, however, to be noted that in sub-section (i) of Section 105, which is in the portion of the Code dealing with general provisions regarding appeals, there occur the words

"but where a decree is appealed from, any error, defect or irregularity in any order affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal."

From this it would appear that the general intention of the Code is that the ordinary method to be adoped by a party for contesting an order passed in the course of a suit which that party considers to be wrong but against which no appeal lies is to challenge it in an appeal filed after the decision of the suit in which the order has been passed.

3 It is quite clear that no question of the lower Court having exercised the jurisdiction not vested in it by law, or having failed to exercise the jurisdiction so vested, can possibly arise with respect to most of the orders which are challenged in the High Court in petitions under Section 115 of the Code, and in order to justify interference the impugned order has to be challenged on