Chamier and Piggott, JJ.
1. This is an application for revision of an order of the Additional Subordinate Judge of Gorakhpur rejecting an appeal by the appellant on the ground that the suit out of which it arose was a Small Cause Court suit, and therefore no appeal lay. The facts are that the suit was instituted in the court of a Munsif who had been invested under Section 25 of the Bengal, N.W.P. and Assam Civil Courts Act, No. XII of 1887, with the jurisdiction of a Judge of a Court of Small Causes up to a certain pecuniary limit. The suit was registered on the Small Cause -Court side. Sometime after the written statement had been filed the Munsif went on leave and was succeeded by an officer who had not been invested with the jurisdiction of a Judge of a Court of Small Causes. The latter officer passed an order transferring to the regular side all Small Cause Court suits which he found pending in the court and tried them out as regular suits. One of those suits was the suit out of which this application has arisen. The Munsif dismissed it and the plaintiff appealed. The Subordinate Judge purporting to follow the decision of this Court in Mangal Sen v. Rup Chand (1891) I.L.R. 13 All. 324 has held that no appeal lay. The facts of that case are not on all fours with those of the present case, for in that case an order had been passed under Section 25 of the Code of Civil Procedure of 1882, and the court was of opinion that under the last paragraph of that section the court to which a Small Cause Court suit is transferred must for the purposes of the suit be deemed to be a Court of Small Causes. It is true that the learned Judges referred also to Section 35 of the Provincial Small Cause Courts Act and indicated that their opinion would have been the same whether the case was transferred under Section 25 of the Code of Civil Procedure or Section 35 of the Provincial Small Cause Courts Act. The decision referred to has been dissented from by the Calcutta High Court in Dulal Chandra Deb v. Ram Narain Deb (1904) I.L.R. 31 Calc. 1057, and also by the Bombay High Court in Ram Chandra v. Ganesh (1893) I.L.R. 23 Bom. 382. In Oudh the view taken for several years past has been that which has been adopted by the Calcutta and Bombay High Courts, vide Kamta Prasad v. Mahabal Singh (1903) 6 O.C. 81. In a very recent case Shiam Behari Lal v. Kali (1914) 12 A.L.J.R. 109. Mr. Justice Knox, who was one of the Judges, who took part in the decision of the case of Mangal Sen v. Rup Chand (1891) I.L.R. 13 All. 324, held that in a case of this kind the officer who succeeded the officer before whom the suit was filed was bound to try such a suit as this as a regular suit. A decree had been passed in the form of Small Cause Courts decree.
2. Mr. Justice Knox held that the unsuccessful party had been prejudiced by the procedure adopted inasmuch as he had been deprived of the right of appeal, and he set aside the decree. The view taken in the case of Shiam Behari Lal v. Kali (1898) I.L.R. 23 Bom. 382 is in agreement with the view taken by the Calcutta, Bombay and Oudh Courts and is, we think, correct. It seems to us that under Section 35 of Act IX of 1887 the Munsif who tried the suit, not having been invested with the jurisdiction of a Court of Small Causes, was bound to try out the suit as a regular suit, and that there was a right of appeal against his decision. We allow this application, set aside the order of the Subordinate Judge, return the record to his Court and direct that the appeal be restored to the pending file and disposed of according to law. Costs of this application will be costs in the cause.