Deoki Nandan, J. - (1.) This revision is directed against an order under Section 24 of the Hindu Marriage Act. The applicant had filned a petition for dissolution of his marriage with the opposite-party, by a decree of divorce under Section 13 of the Hindu Marriage Act. The two prayers (I) for the return of certain articles detailed in the petition and (2) for the custody of a minor son have been super added in the petition. The valuation of the subject matter of the petition was put at Rs. 90,000/- and consequently although the petition was filed in the court of the Civil Judge, Agra, which is one of the courts notified as a district court, under the Hindu Marriage Act, the revision lay-in this Court under Section 115 of the Code of Civil Procedure, as it stands amended in the State of Uttar Pradesh.
(2.) I may add that the revision should be said to be competent because an order under Section 24 is not appealable under Section 28 of the Hindu Marriage Act as it now stands after the Marriage Laws Amendment Act, 1976. Nonetheless a preliminary objection was raised at the hearing of the revision. The objection was based on the proviso to Sub-Section (1) of Section 115 of the Code of Civil Procedure as it stands substituted by U. P. Act 31 of 1978:- "The High Court, in cases arising out of original suits or other proceedings of the value of twenty thousand rupees and above, including such suits or other proceedings instituted before August 1, 1978, and the District Court in any other case, including a case arising out of an original suit or other proceedings instituted before such date, may call for the record of any case which has been decided by any Court sub-ordinate to such High Court or District Court, as the case may be, 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 or the District Court, as the case may be, may make such order in the case as it thinks fit : "Provided that in respect of cases arising out of original suits or other proceedings of any valuation, decided by the District Court, the High Court alone shall be competent to make an order under this section : "Provided further that the High Court or the District Court shall not under this section, vary or reverse any order including an order deciding an issue, made in the course of a suit or other proceeding, except where:- (i) the order, if so varied or reversed, would finally dispose of the suit or other proceeding ; or (ii) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made. Explanation. In this section, the expression "any case which has been decided" includes any order deciding an issue in the course of a suit or other proceeding."
(3.) The expression, or the word, 'proceeding' as used in the provisions has to be given the same meaning as in the opening part of Sub-section (1). It follows that 'the other proceeding' must be an original proceeding and not merely a proceeding in a suit or any other original proceeding. See Smt. Madhvi Sirothia v. Narendra Nath, (1980 A. W. C. 45) . The proceeding commneced with an application under Section 24 was a proceeding in the matrimonial proceeding or the matrimonial suit for divorce. The proceeding under Section 24was not by itself an original proceeding. It was accordingly contended, and I think rightly, that this Court is precluded from varying or revising the order sought to be revised in the present case unless. it could be shown under clause (b) of the proviso that the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.;