VIDYA VATI versus DEVI DAS

Citation: [1977] 2 S.C.R. 182 · Decided: 25-11-1976 · Supreme Court of India · Bench: P.N. BHAGWATI · Disposal: Appeal(s) allowed

Judgment (excerpt)

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182 
VIDYA VATI 
v. 
DEVI DAS 
November 25, 1976 
[P. N. BHAGWATI, A. C. GUPTA AND P. N. SHINGHAL, JJ.J 
Code of Civil Procedure-S. 115-0. XLI/l r. I (s)-Scope of-Obliga" 
tion to repay a loan and obligation to de/ii•er possession concurrent-Demand-
ing possession before repayment of /0011-Jf permissible 
The appellant and the respondent entered into an agreement by which the 
appellant advanced money to the respondent and the respondent 
in 
lieu 
of 
interest thereon gave a portion of his house for residence to the appellant for 
a period of two years. 
The other terms were that if after the expiry of the 
two-year period, the respondent wished to repay the amount, he should give 
one month's notice in writing; that if after the payment of the sum, the appel-
lant would not vacate the house, she would be liable to pay damages and that 
if the respondent did not repay the amount on tile expi1y of 
tile 
two-year 
period, he would not be entitled lo recover damages. 
The respondent alleged that before the expiry of the two-year period on 
September 27, 1969, he addressed a notice to the appellant and teadered re-
. payment of the loan which she refused to accept. The respondent's suit for 
recovery of possession of the premises was decreed ex-parte with an order that 
he should tender payment to the appellant and that if she refused to accept the 
me11ey, it should be deposited in the court. The appellant, on the other hand; 
filed a suit for recovery of the loan in which the respondent contended that the 
claim was bnrred by limitation. The respondent filed a review application before 
the Suh-Judge contending that the order directing deposit of money in 
the· 
court was cleady an error apparent on the face of the record. Allowing the review 
application, tho Sub-Judge. ordered the deletion of the direction for depositing 
the money in court. 
The appellant filed a revision application in the High Court against the order 
on the review application. 
The High Court held that since the order allowing 
the review application was appealable, the revision application was not com-
petent, but on the alternative view that the revision application lay before the· 
High Court, it held (a) that the Sub-Judge had no jurisdiction to impose 
a 
eondition requiring deposit of the loan money, particularly when the suit for 
recovery of the money was pending before the same court and (b) since the· 
respondent tendered the money td. the appellant, 
but it was 
refused, he was 
entitled to a decree for possession. 
Allowing the appeal, 
HELD : ( 1) Order XLIII r. 1 (s) of the Code of Civil Procedure, provides 
an apperu against an order allowing a review application. 
Since the order 
allowing the review application was made by a Sub-Judge, the appeal against .it 
lay to the District Court .and not to the High Court and since no appeal lay 
agaimit the order of the Sub-Judge to the High Conrt, the revis\on application 
could 11ot be rejected as incompetent. [186F) 
Under ~. 115 C.P.C. a revision application can lie before the 
High Court 
from an order made by a 8llbordinate court only if no appeal lies from that 
order to the High Court. The words of limitation used in that section, namely, 
"in which no appeal lies thereto" clearly mean that no appeal must lie to the 
High Court from the order sought to be revised because an appeal is a much 
larger remedy than a revision application and if an appeal lies that would afford 
VIDYA VATI v. DEVI DASS (Bhagwati, I.) 
183 
sufficient relief and there wouldb? no reason or justification for invoking the 
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revisional jurisdiction. (1860-E] 
(2) The High Court and the Sub Judge were in error in allowing the review 
application. 
The direction requiring the respondent to pay the loan to the 
appellant or to depOl'it it in the court was a correct and valid direction and was 
rightly introduced in the original ex-parte decree. 
The courts below were in 
error in ordering its deletion. 
[189 El 
(3) Merely because one party has tendered the amount due "nd p"'yable 
by him and such tender has been wrongly refused by the other party does not 
absolve the first party from its obligation to make payment and where 
the 
obligation to make payment is concurrent with the obligation to hand over 
possession, the claim for recovery of' possession must be accompanied by pay-
ment or deposit of the amount. [188C] 
Dixon v. Clark (1847) 16 LJ CP 237=136 E.R. 919, referred tb. 
In

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