1. This is an application for revision under Section 115 of the Code of Civil Procedure and the ground taken is that the judgment and decree of the lower Appellate Court are nullities because no appeal lay to the Additional Subordinate Judge.
2. The facts of the case are as follows: The firm of Ram Charan-Banwari Lal, who are the applicants here, brought a suit against another firm carried on in the name of Kishori Lal-Ram Sarup. The suit was for the recovery of Rs. 386 odd and was filed in the Court of Mr. Zia-ul- Hasan, who was the Subordinate Judge of Farrukhabad with Small Cause Court powers to try suits of a value not exceeding Rs. 500.
3. Before the suit could be decided Mr. Zia-ul-Hasan was transferred from Farrukhabad to Cawnpore. He was succeeded in office by Mr. Shankar Lal, a Subordinate Judge, but it so happened that Mr. Shankar Lal was not invested with the powers of a Small Cause Court Judge. It became necessary, therefore, for some arrangements to be made to effect the disposal of the suits which had been filed in Mr. Zia-ul-Hasan's Court as Small Cause Court Judge. The suit with which we are concerned now was transferred first to the Court of the Munsif of Farrukhabad and Subsequently to that of the Additional Munsif who finally decided it. The order for the transfer of the case was made apparently by the learned District Judge. I find endorsed on the order-sheet of the suit which is now before me an order over the signature of Mr. Shankar Lal indicating that the case was being sent to the Court of the Munsif of Farrukhabad in accordance with an order of transfer passed by the District Judge.
4. The Additional Munsif having decided the case, an appeal was filed and in the lower Appellate Court the ground was taken that regard being had to the provisions of Section 24 of the Code of Civil Procedure no appeal lay. Section 24(4) lays down that a Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for purposes of such suit, be deemed to be a Court of Small Causes. If that sub-section applies to the present case, and I think it does, then it is clear that the Additional Munsif who decided the suit as the trial Court, must be treated as a Court of Small Causes, and there would have been no appeal against his decision.
5. It has been suggested that there is nothing to show that the suit was transferred under the provisions of Section 24(4), but it appears to me that there is no other authority under which the District Judge could have transferred the case.
6. The Judge of the lower Appellate Court before whom this question of jurisdiction was raised came to the conclusion that Section 24(4) could not apply because, as he says, the Court of Small Causes had ceased to exist as soon as Mr. Zia-ul-Hasan had given over charge and left the District. Consequently, the Judge says that at the date the order of transfer was passed there was no Court in existence. If that be so, the question might very well be asked how was it possible for the District Judge to transfer a case from a Court which did not exist to a Court which did exist. That was the question which was asked in the case of Kauleshar Rai v. Dost Mahomed Khan 5 A. 274. That case is exactly in point here, the facts being exactly the same. The learned Judges were of the opinion that a suit transferred under circumstances similar to those with which I am now concerned was a suit finally tried by a Judge who was a Small Cause Court Judge. In the course of their judgment their Lordships observed as follows:
It was contended for the plaintiff that the suit was not withdrawn from a Court of Small Causes, as that Court had gone out of existence at the time of the Judge's order. But this argument is without force. The suit was on the register of a competent Small Cause Court, which was in existence when the suit was lawfully instituted therein. If the suit was not withdrawn from that Court, from what Court was it withdrawn? Not from that of the late Subordinate Judge, on whose register the suit, as a matter of fact, had never been entered, and could not legally have been entered, as an original suit, under the mandatory provisions of Section 15 of the Procedure Code.
7. This case has never been dissented from as far as my knowledge goes except in the case of Dulal Chandra Deb v. Ram Narain Deb 31 C.1057 but this latter case in turn has been dissented from by another Bench of the Calcutta High Court whose judgment is to be found in Madhusudan Gope v. Behari Lal Gope, 44 Ind. Cas. 881 : 27 C.L.J. 461.
8. The decision of the lower Appellate Court that, it had jurisdiction to entertain this appeal is erroneous. In my opinion it is clearly established that the Court had no such jurisdiction, and that being so, effect must be given to this application for revision.
9. I allow the application and sat aside the decree of the lower Appellate Court. The decree of the Court of first instance is restored. The applicant is entitled to his costs both in this Court and in the lower Appellate Court.