HARI NATH TILHARI, J.

( 1 ) HEARD. Sri N. Subbashastry, learned Counsel for the revision petitioner, and Sri S. N. Kumarswamy, learned Counsel for respondents 1 and 2. Other respondents are served, but none appears.

( 2 ) THIS revision petition arises from the judgment and order dated 29. 7. 1999 delivered by the Civil Judge (Senior Division) and JMF ramanagaram, rejecting the revision petitioners application I. A. VIII filed by the defendant No. 4 in the trial court under Order 26 Rule 10 (A) of Cr. P. C. in Original Suit No - 72/92.

( 3 ) THE Original Suit No. 72/92 had been filed for partition and separate possession by the plaintiffs/respondents 1 and 2 for their legitimate share in the suit Property. The defendant No. 4/revision petitioner appears to have asserted his rights alleging that Linge gowda, deceased 2nd defendant in the case, executed a registered will dated 28. 12. 1992 in favour of the present revision petitioner with respect to properties mentioned in Annexure-B. The defendant realised that the law requires him to prove due execution of the will. No doubt, D. W. 1 and 3 have been examined in the suit. But the defendant filed an application for issuance of an expert commission for comparison of the signatures of the deceased defendant No. 2 lingegowda, father of the revision petitioner. It is not in dispute that the Will has to be proved as per requirement of law, but the Court below opined that in absence of a probate, the Will has to be proved before the Court of law every time whenever it is produced in any proceedings. It further observed that in its considered opinion that in view of the death of defendant No. 2 -Lingegowda during the pendency of the suit, filing of I. A. No VIM by 4th defendant in seeking hand writing experts opinion by referring the disputed document ex. D. 2 does not arise since he has to prove the due execution of the document in each and every proceedings whenever the document is produced before the Court unless and until he obtains probate from the competent Court of law. That being so, the 4th respondent has not made out any extraordinary grounds or circumstances for referring the document Ex. D. 2 for the hand writing experts opinion and as such, it is not a fit case to appoint hand writing expert as court commissioner as prayed in I. A. VIII by the 4th respondent. Having thus recorded these reasons, the trial Court rejected the revision petitioner's application for appointment of export commission. The defendant No. 4 has come up in revision.

( 4 ) THE learned Counsel for the revision petitioner contended that the Court below acted illegally and with material irregularity in exercise of jurisdiction while rejecting the application as well as illegally refused to exercise the jurisdiction vested in it by its failure to apply its mind to the provisions of Rule 10a and its requisites and the learned Counsel contended that, with all due respects, the trial Court has gone astray by talking about probate. He contended that probate ts not required in view of provisions of Section 57 (A) and (B) of the Indian Succession Act as well as to the will in question in view of Section 213 (2} of the Indian Succession Act. The learned counsel also placed reliance on a Single Judge decision of this court in the case of SRINIVAS vs K. V. SRINIVASA RAO.

( 5 ) ON behalf of the respondents' revision was hotly contested Sri S. N. Kumaraswamy. Sri Kumaraswamy contended that order impugned is an order of interlocutory nature and it does not amounts to be a case decided and therefore revision is not maintainable. He further contended that the trial Court might have committed an error but it is not a jurisdictional error coming within the framework of section 115. The learned Counsel clarified that he does not concede that any error has been committed by the trial Court in rejecting application. He submitted that attesting witnesses have been examined and therefore the petitioner will not suffer if commis

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