An order allowing a party to recall a witness for further cross-examination under Section 151 of the Civil Procedure Code is not a "case decided" within the meaning of Section 115 and cannot be revised by the High Court.

Mookherij, J.- This civil revision under Section 115 of the Code of Civil Procedure is directed against a part of the order dated 22.4.1988 of Sri Rajesh Kumar, Subordinate Judge IX, Patna in Title Suit No. 105 of 1984 whereby and whereunder, the prayer of the opposite party-defendant no. 1 in the original suit to recall P. W. 21, D. W. 5 and D. W. 10 for further cross-examination has been allowed.

2. The grievance of the petitioners, inter alia, is that P. W. 21 (petitioner no. 1) was fully cross-examined for nine days and discharged, but after a couple of months an application under Section 151 of the Code of Civil Procedure was filed to recall him for further cross-examination respecting a Vakalatnama filed by him in C. R. No. 1155 of 1986. A similar prayer was also made to recall either two witnesees without disclosing the purpose for the same and the court without applying its mind, allowed it under Section 151 of the Civil Procedure Code which is bad in law.

3. The maintainability of the application was not only raised at the stage of admission by filing a caveat petition but also at the hearing stage and it has been further asserted by defendant no. 1 that the Court after due consideration of the prayer passed the order, which cannot be questioned in this Court under the provision of Section 115 of the Civil Procedure Code.

4. The parties in their petitions have mentioned about certain other matters. We are however, not concerned with the same for the purpose of disposing of this application.

5. Numerous cases of various High Courts and Supreme Court have been cited on behalf of the parties at the time of hearing; we, are however, concerned with the limited questions:

(a) whether the court was competent to pass the order impugned under the provisions of Section 151 of the Civil Procedure Code? and

(b) whether the order passed could be construed to be "a case decided" with in the purview of Section, 115 of the Civil Procedure Code?

6. The original suit is pending since long and it appears that from time to time directions were issued by this Court to expedite the trial. There is also no controversy that the witness sought to be recalled for further cross-examination were examined and cross-examined in the trial court for several days and while allowing the prayer the trial court awarded a cost of Rs. 1000/-againstthe defendant-opposite party.

7. Mr. Ram Suresh Roy, the learned counsel appearing for the petitioners, in the first instance, has submitted that the order impugned could not have been passed under the provisions of Section 151 of the Civil Procedure Code and that also without any valid reason. On the other hand, defendant no. 1 opposite party who bas argued in person has submitted that the present application is not maintainable on the grounds that this court cannot interfere with the order impugned under Section 115 of the Civil Procedure Code as the same does not fan within the definition of any case which has been decided and secondly, some of the parties of the suit having not been made party, the order bas become final as against them and therefore, in either view of the matter, the application is not maintainable.

8. Section 115 of the Code of Civil Procedure empowes the High Court, in cases. where no appeal lies, to satisfy itself on three matters, (a) that the order made by the subordinate court is within its jurisdiction, (b) that the case is one in which the court ought to exercise its jurisdiction, (c) that in exercising the jurisdiction the court has not acted illegally, that is, in breach of some provision of law or with material irregularity that is by committing some error of procedure in couree of the trial which is material in that it may have affected the ultimate decision. Therefore, if an erroneous decision of a subordinate court results in its exercising jurisdiction not vested in it by law pr failing to exercise jurisdiction so vested or acting with material irregularity or illegality in th