JUDGMENT Anjani Kumar, J.
1. The petitioners, who were defendants in Suit No. 57 of 1973 filed by the respondents-plaintiffs approached this Court by means of present writ petition under Article 226 of the Constitution of India, challenging the order dated 13th May, 1985, passed by the District Judge. Ballla, whereby the revision filed by the respondents-plaintiffs was allowed and the judgment and order dated 21st May, 1983, passed by the Civil Judge, Ballia.
2. The facts in brief in the present controversy are that the aforesaid Suit No. 57 of 1973 was decreed ex pane on 10th November. 1976. An application under Order IX, Rule 13 of Code of Civil Procedure was filed by the defendants on 23rd November. 1978 for setting aside the ex parte decree aforesaid, which was allowed by the trial court vide its order dated 21st May. 1983 and the judgment and decree decreeing the suit ex parte dated 10th November, 1976 was recalled and the suit in question was restored to its original number. The respondents-plaintiffs aggrieved by the aforesaid order approached the revisional court under Section 115 of Code of Civil Procedure by means of Civil Revision No. 118 of 1983. The revisional court vide its order dated 13th May, 1985 has allowed the revision and set aside the order passed by the trial court setting aside the ex parte decree and rejecting the application under Order IX, Rule 13 of the Code of Civil Procedure.
3. Learned senior counsel appearing on behalf of the petitioners argued that the revisional court has committed error in entertaining the revision, inasmuch as according to the provision of Section 115 of Code of Civil Procedure as applicable in State of U. P. The aforesaid provision has been added in the Code of Civil Procedure by U. P. Amendment of Section 115, which is reproduced below :
"115. Revision.--The High Court, in cases arising out of original suits or other proceedings of the value exceeding one lakh rupees or such higher amount not exceeding five lakh rupees as the High Court may from time to time fix, by notification published in the official Gazette including such suits or other proceedings instituted before the date of commencement of the Uttar Pradesh Civil Laws (Amendment) Act, 1991, or as the case may be, the date of commencement of such notification and the District Court in any other case, including the case arising out of an original suit or other proceedings, instituted before such date, may call for the record of any case which has been decided by any Court subordinate to such High Court or District Court, as the case may be, 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 or the District Court, as the case may be, may make such order in the case as it thinks fit :
Provided that in respect of cases arising out of original suits or other proceedings of any valuation, decided by the District Court, the High Court alone shall be competent to make an order under this section :
4. The relevant provision is the 2nd proviso, which reads as under :
Provided further that the High Court or the District Court shall not under this section vary or reverse any order including an order directing an issue, made in the course of a suit or other proceeding, except where-
(i) the order, if so varied or reversed, would finally dispose of the suit or other proceedings ; or
(ii) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made."
5. Sri Sidheshwari Prasad, learned counsel appearing on behalf of the petitioners has submitted that the order whereby the defendants' application under Order IX, Rule 13 of Code of Civil Procedure was allowed does not decide the suit finally, nor it in any way has been demonstrated before the revisional court by the plaintiffs-respondents in this writ petition that if the order under revision is allowed to stand, it will occasion failure of justice. In this view of the matter, Sri Sidheshwari Prasad submitted that the order of revisional court suffers from the manifest error of law and deserves to be quashed in exercise of power under Article 226 of the Constitution of India.
6. Learned counsel appearing on behalf of the contesting respondents could not point out from the material on record as to how the IInd proviso of the Code of Civil Procedure, referred to above, as amended in U. P. is attracted. A plain reading of Section 115, as amended in the State of U. P. clearly demonstrates that one of the conditions of jurisdiction for exercise of power under Section 115 of the Code of Civil Procedure is that the application must satisfy the Court to the aforesaid proviso, but in the present case, as stated above, none of the two conditions are satisfied, therefore, in my opinion, exercise of jurisdiction by the revisional court in exercise of powers under Section 115 of the Code of Civil Procedure is wholly illegal and without jurisdiction.
7. In view of what has been stated above, this writ petition deserves to be allowed and the order of the revisional court dated 13th May, 1985 deserves to be quashed and is hereby quashed.
8. In the result, the writ petition succeeds and is allowed. The order dated 13th May, 1985, passed by the revisional court, Annexure-3 to the writ petition is quashed. However, on the facts and the circumstances of the case, the parties shall bear their own costs.