(Prayer: Appeal (disposed of on 12-3-1946) against the judgment and decree of Happell J. dated 12-7-1945 in S.A. No. 2072 of 1944 preferred against the decree of the Court of the Subordinate Judge of Kurnool in A.S. No. 16 of 1944 preferred against the decree of the Court of the District Munsif of Markapur, in O.S. No. 229 of 1942.)

The Chief Justice Leach:

This appeal raises an interesting question of law. We consider that the correct opinion was expressed in the judgment under appeal.

The plaintiff and defendants 1 to 5 were the owners of a parcel of agricultural land measuring 2.30 acres. In 1939 there were proceedings under S. 145 of the Code of Criminal Procedure. As the result of the inquiry the Magistrate held that the sixth defendant was in possession, and passed an order under Sub-S. 6 of the section. The order, which is dated the 16th January 1939, was passed against defendants 1 to 5 alone. The plaintiff was not a party to the proceedings under S. 145. Defendants 1 to 5 filed an application in this Court asking for revision of the Magistrates order. This application was rejected in limine by an order dated the 15th August 1939. The suit out of which the appeal arises was filed on the 26th May 194

2. The plaintiff asked that possession be given to him and to his co-owners. Art. 47 of the Limitation Act provides that a suit of this nature shall be brought within three years of the date of the final order in the case. It can only be brought by a person bound by the order. The plaintiff was not bound by the order and he had the right to sue without regard to Art. 47; but if the final order within the meaning of the Article is that passed by the Magistrate on the 16th January 1939, the suit was out of time so far as defendants 1 to 5 were concerned. On the other hand, if limitation runs from the date of the dismissal of the application for revision, the whole suit was in time. The District Munsif held that so far as defendants 1 to 5 were concerned the suit was out of time and therefore merely gave a decree to the plaintiff for his share of the property. The decree passed by the District Munsif was confirmed by the Subordinate Judge and by Happell J. on second appeal. The present appeal is by defendants 1 to 5 from the judgment of the learned Judge.

The District Munsif and Happell, J. relied on the following observations of Sadasiva Aiyar, J. sitting with Napier J. in Venugopala Mudaliar v. Venkatasubbiah Chetti (39 Mad. 1196) I need not say that where the order on a review petition as distinguished from an appeal petition merely refuses to interfere with the judgment or order sought to be reviewed or where an appeal is not entertained at all, though filed, the original decree or order is and continues to be the subsisting and final decree or order. In this respect an order rejecting a review petition stands on a different footing from a decision passed on appeal confirming the lower Courts judgment and dismissing the appeal. If the decision on review or revision does interfere with the original decision, the former decision becomes the only subsisting order and stands on the same footing as the decision passed in a competent appeal. It will in that case become the starting point for limitation.

It is true that these observations were in the nature of obiter dicta ; but for reasons which we shall presently state, we agree with them.

The learned Advocate for the appellants contends that an application for revision must be placed on the same footing as an appeal which is summarily dismissed under the provisions of O. 41, R. 11 of the Code of Civil Procedure. The decree which gives the starting point for limitation is the decree of the appellate Court which in effect embodies the decree of the trial Court. In this connection the judgment of a Full Bench of this Court in Chidambara Nadar v. Rama Nadar (I.L.R. 1937 Mad. 616=45 L.W. 457 (F.B.) and the judgments of the Privy Council in Rajah of Ramnad v. Kamid Rowthen (49 Mad. 335 [LQ/PC/1926/3] =24 L.W. 1 (P.C.) and Nagendranath De v. Sureshchandra De (60 Cal. 1=36 L.W. 7 (P.C.) have been cited.

In Chidambara Nadar v. Rama Nadar (I.L.R. 1937 Mad. 616=45 L.W. 457 (F.B.) this Court held that the term appeal in Art. 182(2) is not used in a restrictive sense so as to exclude revision petitions and the expression the appellate Court in this Article is not confined to a Court exercising appellate, as opposed to, revisional powers. In arriving at this decision the Court had regard to what the Judicial Committee had said in Rajah of Ramnad v. Kamid Rowthen (49 Mad. 335 [LQ/PC/1926/3] =24 L.W. 1 (P.C.) and Nagendranath De v. Sureshchandra De (60 Cal. 1=36 L.W. 7 (P.C.). In the former of these two cases Lord Dunedin in delivering the judgment of the Board, observed:

From this judgment an appeal in the form appropriate to such a case from the Munsifs Court, i.e., civil revision petition, was preferred to the High Court of Madras.

In Nagendranath De v. Sureshchandra De (60 Cal. 1=36 L.W. 7 (P.C.) in delivering the judgment of their Lordships, Sir Dinshah Mulla said:

There is no definition of appeal in the Code of Civil Procedure, but their Lordships have no doubt that any application by a party to an appellate Court, asking it to set aside or revise a decision of a subordinate Court, is an appeal within the ordinary acceptation of the term, and that it is no less an appeal because it is irregular or incompetent. The 1920 appeal was admitted and was heard in due course and a decree was made upon it.

These judgments do warrant the assertion that there is an analogy between a revision petition and an appeal; but it does not follow that an order dismissing in limine an application for revision of an order passed under S. 145(6) of the Code of Criminal Procedure is a final order within the meaning of Art. 47 of the Limitation Act. Before the deletion of Sub-S. (3) of S. 435 in 1923 the High Court had no power under the Code of Criminal Procedure to hear an application for revision of an order passed under S. 145. As the result of the deletion of that sub-section an application for revision does lie under the Code, but the application is still governed by Ss. 435 to 440 of the Code of Criminal Procedure. S. 440 expressly states that no party has any right to be heard, either personally or by pleader, before any Court when exercising its powers of revision. Therefore, when a petition for revision is presented, it is open to the Judge before whom it comes to read it through and, if he thinks fit, he can dismiss without hearing any one. In the present case the Advocate who presented the petition was heard, but this makes no difference to the effect of the order of dismissal. The application was dismissed because on the face of the petition there was no scope for the exercise of the Courts revisional powers, which means that the order of the Magistrate stood entirely untouched.

We are unable to accept the suggestion that in such a case as the present, there is an analogy between a revision petition and an appeal. The order dismissing an application of this nature does not mean the substitution of the order of the High Court for the order of the Magistrate and therefore it cannot be said to incorporate his order. The real analogy is when the Court dismisses an application for review. When it does so, the decree sought to be reviewed stands and an appeal, if one lies, is from the decree, not from the order refusing to review.

There is another factor. S. 145 of the Code of Criminal Procedure contemplates two orders, a preliminary order under Sub-S. 1 and a final order under Sub-S.

6. Art. 47 of the Limitation Act applies to the second order. Of course, if the application for revision is accepted and the Magistrates order is set aside, his order is no longer the final order; but until it is set aside or modified, it is.

We hold that where an order of a Magistrate passed under S. 145(6) of the Code of Criminal Procedure is not modified by the High Court in revision it is the final order within the meaning of Art. 47 of the Limitation Act.

The appeal fails and must be dismissed with costs in favour of the sixth defendant.