( 1. ) THIS revision by the- plaintiff is against the order dated 18-9-1978, whereby the suit brought by him against the defendant-non-appli-cants-herein has been ordered to be dismissed, while it still is pending against pritamsingh, the other defendant.

( 2. ) FACTS essential for decision of this revision are as under: The plaintiff-applicant-herein brought a suit for recovery of money giving rise to this revision against Pritamsingh and the non-applicants herein. During the pendency of the suit the plaintiff failed, for a period of one month from the date of the return of summons, which had been issued to the defendant-non-applicants-herein, to apply for the issue of a fresh summons to them. However, the trial Court went on adjourning the case and permitted the plaintiff-applicant-herein to submit requisite process fee for effecting service of summons of the suit, on the non-appiicants-herein and ultimately the non-applicants were served. When the non-applicants appeared before the Court they submitted an application under Order 9, Rule 5 read with section 151, civil Procedure Code praying for dismissal of the suit on account of contravention of the mandate of law contained in Order 9, Rule 5, Civil Procedure code. This application was opposed by the plaintiff-applicant-herein. However, by the impugned order the learned Judge of the trial Court has made an order that the suit be dismissed against the defendant-non-applicants. Thus, the suit remains pending as against Pritamsingh. Aggrieved by the aforesaid order the plaintiff has preferred this revision.

( 3. ) IN this revision it is contended by Shri R. G. Waghmare (assisted by Shri R. R. Waghmare) that the impugned order has been passed in an illegal manner and that Order 9, Rule 5 cannot be put into their service by such defendants who have ultimately been served; that the trial Court having permitted the plaintiff time beyond the specified period of one month, even without any application for condonation of delay involved in the non-Submission of process-fee within the period specified by law, will be deemed to have extended the time by implication; that Order 9, Rule 5 cannot be employed as a weapon for dismissal of the suit after their being served with summons. Reliance is placed on the ratio of Shankarlal v. Nathulal, s1.

( 4. ) SHRI Surendrakumar Jain, learned counsel for the defendant-non-applicants raised two-fold preliminary objections to the effect that the revision is not competent, inasmuch as the impugned order amounts to a decree and that the revision application is not properly constituted, inasmuch as Pritamsingh defendant has not been impleaded as a party. On merits, Shri Jain submitted that the impugned order does not manifest any jurisdictional error, which may be amenable to the jurisdiction of this Court under section 115, civil Procedure Code.

( 5. ) HAVING heard the learned counsel for the parties I have come to the conclusion that the preliminary objection with regard to the non maintainability of revision as well as the frame of the revision deserve to be overruled and the revision deserves to be allowed.

( 6. ) RULE 5 of Order 9, Civil Procedure Code in terms describes the nature of the pronouncement thereunder as "an order". This is what is clear from the expression "the Court shall make an order that the suit be dismissed as against such defendant, implied in sub-rule (1) of Rule 5 of order 9 " When the framers of the law designate it as "an order", by no process of construction of the definition of the word decree, as defined in section 2 (2), it can be construed to mean a decree. Section 2 (2) defines decree as under: "decree means the formal expression of an adjudication which so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and th