JUDGMENT Deoki Nandan, J. - 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.
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.
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. 4. This necessitated a basically different approach from the normal approach of seeing whether the order sought to be revised was illegal and improper. Another objection to the exercise of the revisional jurisdiction put forward in this case was that the lower court could not be said to have exercised a jurisdiction not vested in it or to have failed to exercise a jurisdiction vested in it or to have acted in the exercise of its jurisdiction illegally or with material irregularity. It was suggested on behalf of the applicant that so far as this objection was concerned an order for payment of maintenance allowance for a child is not warranted by the terms of Section 24 of the Hindu Marriage Act. That is so and that was the reason why two revisions were admitted at the preliminary hearing, but, it was urged by the opposite-party that the application made in the trial court was a composite application under Sections 24 and 26 both. So far as Section 26 is concerned, any order passed thereunder is appealable under Section 28 and when an order is appealable, no revision lice therefrom. 5.
So far as Section 26 is concerned, any order passed thereunder is appealable under Section 28 and when an order is appealable, no revision lice therefrom. 5. To resolve the conundrum I looked at the facts to see whether the order sought to be revised could be said to be so unjust or improper as to occasion a failure of justice or to have caused irreparable injury to the applicant-husband. 6. Having looked into the facts and the findings arrived at by the trial court, I find that the order cannot be said to be unjust or improper, or such as to call for any interference. May be the amount of Rs. 2000/- that has been awarded for expenses sounds rather high when one looks at the costs allowable on taxation but one of the grounds on which this high amount of expenses was allowed was that the wife will have to travel a long distance from Jullundur to Agra defending the case. Moreover, looking to the status of the husband and his income it is not possible to say that the payment of this amount would put such a heavy burden on him as to cause any irreparable injury. After all the order does not determine the rights of the parties. It is only an interim order meant to put the indigent spouse into funds so as to enable her to defend or prosecute the case and to keep her body and soul together during the pendency of the case at the cost of the other spouse in case the latter is in a position to foot the same. As to the Amount of Rs. 600/. p.m. that has been awarded for maintenance of the wife and the child together, it may be that another judge might fix a slightly lower or may be even a slightly higher figure on the same date but it cannot be said that the amount allowed is so excessive or arbitrarily excessive, such as to occasion a failure of justice or to cause irreparable injury to the applicant, if the order is allowed to stand. 7. In any view of the matter this revision application is fit to be dismissed. The sum of Rs. 500/- was paid to the wife as expenses in this Court. That shall be appropriated by him.
7. In any view of the matter this revision application is fit to be dismissed. The sum of Rs. 500/- was paid to the wife as expenses in this Court. That shall be appropriated by him. The amounts paid under the interim orders of this Court towards maintenance pendente lite shall be appropriated and deemed to have been partly paid towards the original order of the lower court dated 6th January, 1981. With these observations, the interim order passed by this Court on 12th May, 1981 is vacated. The revision is dismissed. There will be no order as to costs. The record shall be sent to the trial court at once. The parties are directed to be present in the court of Civil Judge, Agra on 20th March, 1982 to take further orders for the progress of the case.