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Civil Appeal No. 82 of 1973, decided on 15th December, 1979.

(On appeal from the order of this Court in Civil Petition for Special Leave to Appeal No. 425 of 1972, dated 20-6-1973).

-- Ss. 2(d) & 104 and O. VIII, r. 10 read with O. XLIII, r. 1(b)-Order/ judgment against defendant for failure to file written statement-Held Appeal-able-Such order not a decree, second appeal not competent and revision to High Court alone competent.-[Appeal (civil)-Revision (civil)].

lftikharul Haq Khan, Advocate Supreme Court and Sh. Ijaz Aii, Advocate -on-Record for Appellants.

Raja Afrasiab Khan, Advocate Supreme Court and Wajid Hussain, Advocate-on-Record for Respondent.

Date of hearing : 15th December, 1979.

1t is not necessary to go into the detailed facts of this case and for the purpose of the present order it will be sufficient to mention that in a suit filed by the respondent, the learned Civil Judge on 15-7-1970, pronounced judgment against the petitioners-appellants under Order VIII, Rule 10, .P. P. C. for their failure to file a written statement.

2. The appellants/petitioners filed an appeal but without success as the same was dismissed by the learned Additional District Judge on 1-7-1971.

3. The appellants 'petitioners then filed a civil revision being C. R. No. 832 of 7971 which too failed as the same was dismissed by the High Court on 12-10-1971, as not maintainabie for the reason that from the decree of the learned Civil Judge a second appeal in the High Court could be filed with the result that when an appeal "lies thereto" (i.e. the High Court.) a revision 'In that Court was incompetent under section 115, C. P. C.

4. The appellants/petitioners have come up in appeal to this Court by special leave which was granted on 20-6-1973.

5. After hearing the learned counsel for the parties we are of the opinion that this appeal must be accepted. According to section 2(d) of the C. P. C. a decree shall not include any adjudication from which an appeal lies as an appeal from an order". If section 104, C. P. C. which provides for appeals against orders, is read with Order XLIII, rule 1(b) then it is clear than an order under Order VIII, rule 10 was an appeal-able order. This will show that the order dated 15-7-1970 passed by the learned Civil Judge was not a decrees and assumption of the High Court to the contrary that it was so or that a second appeal from the same was as such competent in the context was not correct inasmuch as section 104(2 expressly lays down that "no appeal shall lie from any order passed in the context explained above it was not a case in which an appeal lies thereto "i.e., to the High Court, and from that point of view a revision was justifiably maintainable in that Court. The order of the High Court which refused to determine the said revision is therefore set aside and the case is remanded to the said Court for its determination in accordance with law. The parties shall bear their own costs.

Case remanded.

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