1. This Civil Revision arises out of an application presented by the applicant under Order 46, Rule 7 of the Code of Civil Procedure. The District Judge before whom the application was moved rejected it.
2. On 28-12-1954 there was passed a decree against the applicant, and one Jagdeo, awarding to the non-Applicant Kashiram Rs. 500/- on account of mesne profits of immoveable property for the years 1952-53 and 1953-54 and costs. The decree was passed ex parte, the applicant not appearing at any stage of the suit.
3. The non-applicant No. 1 sought execution of the decree, attached the applicant's field and had it sold in auction. It was at this stage that the applicant put in the application to the District Judge. The ground on which he claimed to set aside the ex parte decree was that Mr. D R. Gomkale, Civil Judge, Class II, Khamgaon, who tried that suit on the regular side had no Juris-diction to decide that suit in view of Article 31 of the second Schedule to the Provincial Small Cause Courts Act read with Section 16 thereof. The District Judge overruled the objection and refused to make a reference.
4. Now It has been urged before me that the suit was not a suit for accounts as contemplated in Article 31, nor did the plaintiff seek to have an account taken even in respect of the mesne profits, and therefore it was not a suit falling within Article 31 and the Civil Judge, Class II, who had no small cause powers could not have tried it. On behalf of non-applicant No. 1 a number of authorities have been cited to show that it was a suit triable by the Civil judge. I need not, however, go into this controversy because it appears to me that upon the very terms of Order 46, rule 7, Code of Civil Procedure, it is inapplicable to the facts of the present case. Order 46, rule 7, runs as follows :
'7. (1) Where it appears to a District Court that a Court subordinate thereto has, by reason of erroneously holding a suit to be cognizable by a Court of Small Causes or not tp be so cognisable, failed to exercise a jurisdiction vested in it by law, or exercises a jurisdiction not so vested, the District Court may, and if required by a party shall, submit the record to the High Court with a statement of its rossons for considering the opinion of the subordinate Court with respect to the nature of the suit to be erroneous......'
The words 'by reason of erroneously holding a suit to be cognizable by Court of Small Causes or not to be so cognisable' in my opinion, clearlyindicate that the Court which decides the suit must apply its mind and come to a finding whether a suit is cognizable by a Small Cause Court or not so cognizable; and unless such a finding has been given, Rule 7 of Order 46 would be inapplicable. This would also appear to be in consonance with reason and good sense because it could not have been the intention of the law to permit a party who remains absent and deliberately allows a Court to take an ex parte decision, Without inviting its attention to its want of jurisdiction, to turn round and say when the ex parte decree is put into execution that it had no jurisdiction and that therefore a reference should be made. On behalf of the applicant the case in Jaduni Pande v. Sheonandan Pande : AIR1933Pat31 , was referred to where no doubt a view contrary tp the one I have taken was adumbrated, but with all respect, in that case their Lordships failed to consider the effect of the words of Rule 7 which I have emphasised above. I prefer, with respect, to follow the contrary view propounded in Oor Nayakhan v. Aru-nachala Chettiar AIR 1948 Mad 245, which appeai-s to me to be the only view possible upon the terms of Order 46, rule 7, Code of Civil Procedure.
5. It was then urged by Mr. Y. V. Jakatdar that where a matter of the jurisdiction of a Court is concerned, the question whether an objection to jurisdiction was raised or not ought to be im-rnaterial, because the decree would still be a decree without Jurisdiction although no objection was raised. In my opinion, it is unnecessary to discuss this larger question with all its attendant ramifications because here I am not concerned with the validity of the decree but with the question whether a reference ought to have been made under Order 46, Rule 7 of the Code Of Civil Procedure. The power to make the reference is statu-torily conferred and the express condition for its exercise is that a Court subordinate to the District Court shall have failed to exercise a jurisdiction vested in it by law or to have exercised a jurisdiction not so vested 'by reason of erroneously holding a suit to be cognisable by a Court of Small Causes cr not to be so cognizable.' Thus there must be a finding as to jurisdiction of a Small Cause Court one way or the othsr before the power can be exercised. The power cannot bet invoked where an ex parte decree has been pass-ed and no finding as to Jurisdiction has been given.
6. Upon this view, the decision of the District Judge not to refer the case to the High Court was a correct decision and the application for revision must be dismissed with costs.
7. Application dismissed.