RAMAKRISHNA PILLAI, J.

1. Whether an order refusing to set aside an ex parte decree in a suit which was affirmed in appeal under Order XLIII Rule 1 of the Code of Civil procedure, for short, the Code, be challenged by taking recourse to revisional jurisdiction of this Court under Section 115 of the Code is the limited question which we are called up on to answer in this reference.

2. Ex parte decree was passed in the original suit against the petitioner who is the defendant. He filed application under Order IX Rule 13 of the Code to set aside the ex parte decree along with an application to condone the delay under Section 5 of the Limitation Act alleging that he was laid up due to illness while his presence was required by the trial court. The trial court by a common order dismissed both the applications. The petitioner carried the matter in appeal before the District Judge, Palakkad, who by the impugned order, dismissed the appeal. The petitioner challenged the order under Article 227 of the Constitution of India.

3. The maintainability of the same was challenged by one of the respondents on the ground that the order refusing to set aside the ex parte order is subject to revision under Section 115 of the Code. The learned Single Judge, before whom the matter came up, expressed the view that the term "proceeding" contained in the Explanation to Section 115 of the Code would take in steps under Order IX Rule 13 of the Code and in the suit as well. The learned Single Judge was of the view that the proceedings are not finally terminated by setting aside the ex parte decree, but the suit stands resurrected on file for disposal on merits. The learned Single Judge after making a reference to the decision in Thilakan v. Kunhalankutty [2004 (1) K.L.T 235] also expressed doubt regarding the correctness of the dictum laid down by this Court in Balan v. Devaki [2011 (3) KLJ 709] and recommended re-consideration of the issue by the Division Bench. Thus, the matter came up before us.

4. Arguments have been heard. We have also gone through the decision in Balan v. Devaki (supra). In that case, this Court while considering an identical situation examined the scope of the proviso to sub section (1) of Section 115 of the Code as well as the explanation thereto and held that the order of the appellate court in such cases is revisable under Section 115 of the Code.

5. In this context, it is quite apposite to read Section 115 of the Code with its legislative changes. Section 115 as it stood before the amendment of 1976 was as follows:

"115. Revision.-- The High Court may call for the record of any case which has been decided by any court subordinate to such High Court 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 may make such order in the case as it thinks fit."

6. In the year 1976, Section 115 of the Code was amended, re-numbering the original section as sub section (1). Apart from adding sub section (2), a proviso as under was added to sub section (1):-

"Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceedings, except where-

(a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or

(b) the order if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made."

The following explanation was also added:-

"Explanation:- In this section, the expression "any case which has been decided" includes any order made, or any order deciding an issue in the course of a suit of other proceeding"

7. The legislative intent for bri