JUDGMENT

1. This is an application for revision against an order passed by the civil Judge, Bahraich, rejecting the defendants-applicants' application for the issue of a commission for their examination. The opposite parties brought a suit against the present applicants and others. The applicants applied to the civil Judge, in whose Court the suit was pending, that they resided in Hyderabad Deccan that their examination was absolutely necessary but on account of service they could not appear personally in Court and their coming from Hyderabad to Bahraich would entail considerable expenditure. The civil Judge refused this application and the defendants have come up in revision under Section 115, Civil P.C. Section 115 runs as follows:

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 t'he exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit.

2. The first point to be considered is whether any case has been decided by any Court. We are of opinion that no case has been decided by the civil Judge. The mere refusal of an application to issue a commission cannot be considered to be a decision of any case. The learned Counsel for the applicants has relied on several cases: Ananda Chandra v. Suk Chand, AIR1925Cal1118 , Akbar Ali Khan v. Herbert Francis, A.I.R. 1925 Pat. 125, Gulab Rai v. Mahendra Nath, A.I.R. 1935 Pat. 220, Muhammad Ibrahim v. Allapiohai Rowther A.I.R. 1937 Mad. 24 R. Viswanathan Chetty v. Somasundaram Chetty, A.I.R. 1924 Mad. 541 and T.W.V. Elvers v. American Motor Co.A.I.R. 1924 Lah. 475.

3. The last case has no bearing. There the application by the defendant that he be examined on commission was refused and then an ox parte decree was passed against him. An application was made to set aside the ex parte decree and it was refused. The defendant then applied in revision from that order and it was held that the lower Court was wrong in refusing to issue a commission. In Akbar Ali Khan v. Herbert FrancisA.I.R. 1925 Pat. 125, the Court had ordered the plaintiff and his witnesses who were residing outside India to be examined on commission. The High Court in revision set aside the order for the examination of the plaintiff on commission but maintained the order as to the witnesses. In Gulab Rai v. Mahendra Nath, A.I.R. 1935 Pat. 220, the lower Court had ordered the plaintiff to be examined on commission. The High Court in revision maintained that order but imposed certain conditions. In R. Viswanathan Chetty v. Somasundaram Chetty, A.I.R. 1924 Mad. 541, the defendant's application for his examination on commission was refused and the High Court interfered in revision. In Muhammad Ibrahim v. Allapiohai Rowther, A.I.R. 1937 Mad. 24, the trial Court rejected the application for the issue of a commission for the examination of the defendant himself. The High Court in revision held that there was not sufficient reason to refuse to issue a commission. In none of these oases was the point; discussed whether a case had been decided. In Ananda Chandra v. Suk Chand, AIR1925Cal1118 the lower Court had ordered the plaintiff's witness to be examined on commission but at a particular place. The High Court in revision interfered with the order of the lower Court that the witness be examined not at his house but at another place, and directed that he be examined in his house. It was observed in that case that an interlocutory order of the nature which was before the learned Judges, could be interfered with in revision if the order was one which was calculated to do irreparable injury to a party in a suit. In this last case also the point whether a case had been decided was no