Lindsay and Daniels, JJ.
1. A preliminary objection is raised to the entertainment of this appeal, based upon the provisions of Section 102 of the Code of Civil Procedure; in other words, it is argued that the suit out of which the appeal has arisen was a suit of the nature cognizable by a Court of Small Causes, and as the subject-matter of the suit was under Rs. 500, therefore no second appeal lies.
2. The facts are as follows:
The plaintiff in the suit was one Khairati Lal. This man had a decree against one Abdul Aziz which he was executing by sale of certain immovable property supposed to belong to Abdul Aziz.
3. At the time when these execution proceedings were pending, it seems that the other party to this suit, namely, Lala Kesho Satan, held two decrees against the same judgment-debtor Abdul Aziz. Kesho had applied in the execution proceedings taken by Khairati Lal, for rateable distribution of assets.
4. When the time came for sale of the property, Khairati, Lal, the decree-holder, applied to the court for permission to bid. The court gave him the permission on the condition that before bidding for the property, he was to satisfy the two decrees which Kesho Saran held against the judgment-debtor Abdul Aziz. Khairati availed himself of this condition, paid the decretal money owing to Kesho Saran and, thereafter, bid for and purchased the property.
5. Afterwards there was a suit by a third party, one Muhammad Jan, to have, the sale set aside on the ground that the property which was sold and purchased by Khairati Lal was not the property of Abdul Aziz at all but was Muhammad Jan's own property. This suit succeeded and the result, therefore, so far as Khairati Lal was concerned, was that he was deprived of his purchase. Khairati Lai then brought this suit to recover from Kesho Saran the money which he had paid in satisfaction of Kesho Saran's two decrees. The amount in suit was Rs. 198-15-8, and there was added a claim for Rs. 70 by way of interest, so that the total came to somewhere under Rs. 270.
6. It is clear, therefore, that having regard to the value of the subject-matter of the suit, no second appeal will lie unless it can be shown that the suit was exempted from the cognizance of the Small Cause Court.
7. Mr. Banerji, who has argued the case on behalf of the appellant, contends, in the first place, that the suit may be treated as a suit under Clause (2) of the second schedule to the Provincial Small Cause Courts Act. That clause relates to suits concerning acts purporting to be done by any person in pursuance of a judgment or order of a court or of a judicial officer acting in the execution of his office. We cannot see that this clause has any application to the claim now before us for consideration. The clause clearly refers to suits for damages in respect of acts done under the orders of a court and it cannot be pretended that Khairati Lal paid over the money to Kesho Ram under any such order. The court merely gave him the option of paying the money as a condition of his being allowed to bid at the auction. Failing this clause, the learned Counsel for the appellant would rely upon Clause (26) of the second schedule which relates to suits to compel a refund of assets improperly distributed under Section 73 of the Code of Civil Procedure. Here again we are unable to accept the argument, for it appears to us to be perfectly clear that the, suit was not a suit of the kind described in this clause. It follows, therefore, that the learned Counsel not being able to bring his suit under any of the heads referred to in the second schedule to the Provincial Small Cause Courts Act, it must be taken that the suit was of a nature cognizable by a Court of Small Causes and, consequently, under Section 102 of the Code of Civil Procedure no appeal lies. We allow the preliminary objection and dismiss the appeal with costs to the respondent.