Judgment : The revision is directed against the order in I.A.No.921 of 1992 in O.S.No.25 of 1986on the file of the Subordinate Judge, Tuticorin, allowing the said application filed by the respondent herein under O.26, R.1, Code of Civil Procedure for appointment of an advocate-Commissioner to examine two witnesses Perumal Nadar and Piramanayagam Pillai, who are stated to have attested two wills. 2. The case of the petitioners in the court below is that to prove the two Wills concerned in the suit the respondent had to examine two witnesses Perumal Nadar and Piramanayagam Pillai who are stated to have attested the two Wills and they were not in a position to come to Court and depose, and so an advocate Commissioner is to be appointed to examine them. The said application was resisted by the petitioners herein contending that there was no execution of Wills at all and both Perumal Nadar and Piramanayagam Pillai were doing well and were living just 30 kms. away from the court premises and they could come to court freely to depose and no commission need be appointed to examine them. After hearing both the parties, the learned Subordinate Judge, has allowed the said application. Aggrieved by the same, the petitioners have filed the present revision petition. 3. Mrs.Chitra Sampath, learned counsel for the petitioners would submit that the court below had not exercised its discretion in a judicial manner and therefore, the impugned order is liable to be set aside. Per contra, Mr.Peppin Fernando, learned counsel for the respondent would submit that this revision itself is not maintainable under Sec.115 of the Code of Civil Procedure and hence the same is liable to be dismissed. He would further submit that on merits also the order is correct. 4. I have carefully considered the submissions made by the rival counsels. In the affidavit filed by the respondent herein in the court below, he has stated in paragraph 3 as follows:. “To prove the two Wills, I have to examine one Perumal Nadar who had attested two wills and one Piramanayagam Pillai who had attested two Wills. The said two persons are not in a position to come to this Hon’ble Court. Perumal Nadar had broken one of his legs by falling down from the Palmyrah tree. He is bedridden. The other witness is a heart patient. The said two persons are not in a position to come to this Hon’ble Court. Perumal Nadar had broken one of his legs by falling down from the Palmyrah tree. He is bedridden. The other witness is a heart patient. So the abovesaid two witnesses have to be examined on Commission at their residence.” The above allegations are stoutly refuted by the petitioners herein in paragraph 2 of the counter filed on behalf of the 7th respondent before the lower court. It runs as follows: “....There was no execution of Will at all. Perumal Nadar, did not break his leg as alleged. He is not bedridden. Piramanayagam Pillai is not a heart patient as alleged. The residences of the alleged witnesses are situated only about 30 kms. from this Hon’ble Court. The proposed witnesses can come to this Hon’ble Court and depose freely. There is no necessity for examining them on commission.” When there is an allegation by the respondent herein that the above said two witnesses are not in a position to come to court and depose about the execution of the wills concerned, in the suit and when the said allegation is stoutly denied by the petitioners herein, the court below is obliged to find out whether the proposed witnesses are unable to attend the court because of their sickness or infirmity and decide the matter. For the purpose of convenience, the relevant portion of O.26, R.1, Code of Civil Procedure is extracted hereunder: “1. Cases in which Court may issue commission to examine witness: Any court may in any suit issue a Commission for the examination on interrogatories or otherwise of any person resident within the local limits of its jurisdiction who is exempted under this Code from attending the court or who is from sickness or infirmity unable to attend it.” (emphasis supplied). A reading of the above provision would clearly visualise only two contingencies, in which the court may issue a Commission to examine a witness namely: .(i) where a witness resides within the local limits of its jurisdiction who is exempted under this Rule from attending the Court; and .(ii) a witness who is unable to attend the court because of his sickness and infirmity. In the instant case, the respondent herein wanted to examine two witnesses on commission because they were sick and infirm and therefore, they fall under the latter category refereed to supra. So it is incumbent on the part of the Court to first find out whether the witnesses sought to be examined on commission would fall under category (ii), and then only appointment of an advocate-Commissioner to examine them on commission would arise. But the court below has stated in its order that it is not possible to decide in the petition before it as to whether the witnesses are keeping good health or whether they are sick, as if it is not necessary. But it is a sine qua non before passing an order of appointment of an advocate-Commissioner, to examine whether the witnesses are keeping good health or not. But the court below without deciding the main issue and when that aspect has not been decided, ordered appointment of a Commissioner and such an order cannot be sustained and has to be necessarily set aside. 5. Mr.Peppin Fernando, learned counsel for the respondent would submit that this revision petition under Sec 115, Code of Civil Procedure is not an appealable order and unless it falls within clause (a) or (b) of Proviso to Sec.115, C.P.C., no revision will lie and the instant case will not fall either under clause (a) or (b) of the Proviso to Sec.115, C.P.C. For the purpose of convenience, I shall extract the proviso to Sec.115, C.P.C, which reads as follows: “Provided that the High Court, shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where- .(a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or .(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it is made.” 6. Mrs.Chitra Sampath, learned counsel for the petitioners would submit that the case on hand would fall under clause (b), mentioned above and the Court below had not applied its mind at all to the essential pre-requisite condition, which alone would enable the Court to appoint a commission for examination of the witnesses and as such it would follow that there will be a failure of justice so far as the affected party is concerned. 7. Mr.Peppin Fernando, learned counsel for the respondent would rely upon Filmistan (P) Ltd. v. Bhagwandas, A.I.R. 1971 S.C. 61, in support of his contention. In that case, the witnesses who were sought to be examined on commission were residing in Kabul and an order was passed directing issue of letter of request to the Indian Ambassador at Kabul to examine certain witnesses who were residing at Kabul on Commission. That order was challenged before the Apex Court. The Apex Court has held that the fact the witnesses examined on commission cannot be effectively cross-examined or their examination will entail heavy costs are not sufficient circumstances to interfere with the discretion of the learned trial Judge. The facts of this case are totally different from the facts of the case cited supra. In the instant case discretion was not at all exercised by the court below, leave alone the judicial discretion. 8. In Chinna alias Sabapathi Gounden v. Ambanda Moorthi alias Thandi Gayvela Gounder, 33 I.C. 520, relied on by the learned counsel for the respondent, it was held that the High Court ought not to sit in appeal over every exercise of discretion by the Court below, even though under the law no appeal is given to the party against whom the discretion has been exercised. Here again, I would like to point out that in the instant case, it is not as if the discretion was exercised by the court below and the same is challenged herein. The court below has not at all exercised its discretion. 9. In Nityanandam and others v. Habeen Aysha and three others, (1992)1 L.W. 656 , relied on by the learned counsel for the petitioners, a Division Bench of this Court has held that the discretion of court is a judicial discretion and its exercise is guided by well-settled principles of law. 9. In Nityanandam and others v. Habeen Aysha and three others, (1992)1 L.W. 656 , relied on by the learned counsel for the petitioners, a Division Bench of this Court has held that the discretion of court is a judicial discretion and its exercise is guided by well-settled principles of law. On a consideration of law and facts, I am clear that the instant case will fall within clause (b) of Proviso to Sec. 115, Code of Civil Procedure and the present revision petition is maintainable. 10. In the result, the order of the court below is set aside and the matter is remitted back to the Court below for fresh disposal according to law in the light of the observations made in the Course of this order and in the light of the clear provisions of O.26, Rule 1, C.P.C. No Costs.