Patanjali Sastri, J.
1. This revision petition raises a question of jurisdiction on which there has been considerable divergence of judicial opinion.
2. The facts may be briefly stated. The petitioner obtained an ex parte decree in Section C.S. No. 73 of 1937 on the file of the Subordinate Judge's Court of Tiruvarur. The respondent who was the first defendant in the case applied to the Court to set aside the ex parte decree which was set aside on 31st August, 1937, on certain terms which are not material for the purpose of this petition. A revision petition was filed against that order and this Court set it aside and remitted the proceeding for disposal according to law. Before, however, it could be disposed of, the Court of the Subordinate Judge of Tiruvarur was abolished with effect from 1st November, 1938, and by the District Court's proceedings dated 29th October, 1938, the application to set aside the e% parte decree was ordered to be transferred from the Subordinate Judge's Court to the District Munsif's Court, Tiruvarur, and the transfer was accordingly made by the Subordinate; Judge on 31st October, 1938. The District Munsif dealing with the application in due course, held that there was sufficient service of the summons in the suit on the respondent and there was no sufficient cause for his non-appearance on the date of the hearing of the suit and dismissed the application. It may be mentioned here that the small cause jurisdiction of the District Munsif's Court, Tiruvarur, was so limited that it could not have entertained on the small cause side the suit out of which these proceedings arose if such suit were then about to be instituted. On appeal to the District Court, that Court reversed the decision of the District Munsif and set aside the ex parte decree holding that there was no proper service of summons in the suit. This Civil Revision Petition has been preferred against that order.
3. The main contention for the petitioner before me was that the appeal to the lower Court was incompetent and its order purporting to set aside the ex parte decree was made1' without jurisdiction. This contention was based on two grounds: Firstly, the order of the District Court transferring the respondent's application t6 set aside the ex parte decree from the Subordinate Judge's Court of Tiruvarur where it had been pending after remand by this Court to the Court of the District Munsif of the same place must be taken to have been made under Section 24 of the Civil Procedure Code and by virtue of Sub-section (4) of that section, the District Munsif's Court must be deemed to have dealt with the application as a Court of Small Causes. Therefore, it was said, the order dismissing the application was final under Section 27 of the Provincial Small Cause Courts Act and no appeal lay against such order. Secondly and alternatively, even assuming that the District Munsif's 'Court dealt with the application and made the order on the original side of its jurisdiction, Order 43, Rule 1(d), Civil Procedure Code, provided an appeal against an order rejecting an application to set aside an ex parte decree only 'in a case open to appeal' and the decree in this case having admittedly been made by the Subordinate Judge's Court, Tiruvarur, as a Court of Small Causes, it was not a case open to appeal within the meaning of Order 43, Rule 1(d) and no appeal was admissible. Several decisions were cited in the course of arguments on either side but before considering them, I will briefly refer to the relevant statutory provisions bearing on this question. Section 16 of the Provincial Small Cause Courts Act provides that a suit cognizable by a Court of Small Causes shall not be tried by any other Court having jurisdiction within the local limits of the jurisdiction of the Court of Small Causes by which the suit is triable. Section 35(1) provides that:
Where a Court of Small Causes or a Court invested with the jurisdiction of a Court of Small Causes, has from any cause ceased to have jurisdiction with respect to any case, any proceeding in relation to the case, whether before or after decree, which, if the Court had not ceased to have jurisdiction, might have been had therein, may be had in the Court which, if the suit out of which the proceeding has arisen were about to be instituted, would have jurisdiction to try the suit.
4. It will be observed that this section does not say that the Court which is empowered thereunder to entertain proceedings owing to a Small Cause Court ceasing to have jurisdiction with reference to the case, should have jurisdiction to try the suit as a Court of Small Causes. It is sufficient if it has jurisdiction to try the suit. It is not disputed that the District Munsif's Court, Tiruvarur, would be the Court having jurisdiction to try the suit out of which these proceedings have arisen, if ihat suit were to be instituted at the time when the application to set aside the ex parte decree was transferred to it, as no other Court had jurisdiction to try it as a Court of Small Causes within the same local limits. The District Munsif's Court, however, was competent to entertain the suit only on its original side, owing to the limitation placed on its small cause powers. Section 24, Civil Procedure Code, empowers the High Court or the District Court to transfer any suit, appeal or other proceeding pending in any Court subordinate to it to any other Court subordinate to it and competent to try or dispose of the same and it is provided in Sub-Section (4) that:
The Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes.
5. The section makes it clear - and it has also been decided (vide Chockalingam v. Palaniappa : (1932)63MLJ689 ) that a District Court may transfer any proceeding from a Court of Small Causes to a Court not having adequate small cause powers to deal with it as a Court of Small Causes. But, nevertheless, the latter Court shall be deemed to be a Court of Small Causes for the purposes of the suit transferred. While, therefore, both under Section 24, Civil Procedure Code and Section 35 of the Provincial Small Cause Courts Act, a Court not invested with adequate small cause powers may properly try a suit which was originally instituted as a small cause suit in a different Court, there is a marked distinction in the character in which it is empowered to-deal with such suit. Under Section 24, Civil Procedure Code, such Court tries the suit as a Court of Small Causes while under the latter provision, it tries the suit in whatsoever character it has-jurisdiction to try it. Now, the question arises: when a District Court purports to transfer a suit or a proceeding from a Small Cause Court which is about to be abolished to a Court which is empowered under Section 35 of the Provincial Small Cause Courts Act even without such transfer, to deal with it, is the decree or order passed by the latter Court to be regarded as one passed by a Court of Small Causes or by a Court exercising original civil jurisdiction? The answer to this question is of considerable practical importance to the parties concerned as on such answer depends their right of appeal.
6. On a consideration of the provisions referred to above, it appears to me that the order of the District Munsif's Court,. Tiruvarur, refusing to set aside the ex parte decree must be regarded as an order passed by the Court in the exercise of its. original civil jurisdiction. Under Section 35 of the Provincial Small Cause Courts Act, the respondent was entitled to have his application for setting aside the ex parte decree, which was pending in the Subordinate Judge's Court, taken up and disposed of by the District Munsif's Court aforesaid, and that Court dealt with it and could only deal with it, on the original side of its jurisdiction. As already observed, this section does not require that the Court dealing with a proceeding thereunder should be competent to deal with it as a Small Cause Court; nor dots it provide that such Court shall be deemed to be a Court of Small Causes. It is therefore difficult to see how the position could be altered by the District Court purporting to transfer the respondent's application to the same District Munsif's Court. As already indicated, no order of transfer was necessary to enable the latter Court to deal with the respondent's application and the order passed by the District Court must, in the circumstances, be regarded as in the nature of an administrative direction issued to facilitate the transmission of the records of the proceeding, and not as an order under Section 24, bringing Sub-section (4) of that section into operation.
7. The petitioner argued broadly that the suit having been originally instituted as a small cause suit in a Court having jurisdiction to try it as such, the character of the suit could not be changed though it was subsequently dealt with under Section 35 by another Court as an original suit owing to want of adequate small cause powers. This contention is supported by the observations of Stone, J., in Ramaswami Muthirian v. Arunachalam Chettiar : AIR1935Mad919 . These observations were however largely obiter, as in that case the Court which finally disposed of the suit was competent to try it as a small cause suit and must be deemed to have dealt with it as such, as it could not have dealt with it otherwise having regard to Section 16 of the Act. No doubt the view adumbrated by the learned Judge, namely, the suit remains what it was when it began has the merit of simplicity but I am unable to find any warrant for it in the relevant statutory provisions., The learned Judge observes:
Now it was urged that Section 35 of the Provincial Small Cause Courts Act operates to change in some way a small cause suit into an original suit. In my opinion, it does nothing of the sort. What Section 35 does is to invest, a Court which otherwise would be incompetent to bear any, or certain, small cause suits, with power to hear certain of such suits, namely, those pending in that Court at the time that Court's jurisdiction is changed.
8. This is not entirely correct, as Section 35 provides not only for the continuance of pending proceedings in the same Court when that Court's jurisdiction is changed, but also for their continuance in a different Court on the abolition of the original Court. Apart from this, if, as the learned Judge thinks, there is nothing in Section 35 to turn a small cause suit into an original suit, it is difficult to see anything in it to turn a Civil Court into a Court of Small Causes, so as to attract the application of Section 27 barring appeals in respect of a decree or order made by a Court 'of Small Causes. It is significant that Section 35 contains no provision similar to Section 24 (4), Civil Procedure Code. ' It seems to me that the rule laid down by the learned Judge would be an unwarranted extension of the latter provision to cases falling under Section 35, and is not supported by the authorities referred to by him. In the Full Bench case in Kollipara Seethapathy v. Kantipati Subbayya (1909) 20 M.L.J. 718 : I.L.R. 33 Mad. 323 , it appears that the District Munsif who tried the suit on the original side had jurisdiction to try it as a small cause suit and it was held that the Court must be regarded as having tried it as a Court of Small Causes. The case was not one under Section 35 and it does not support the wide proposition laid down by the learned Judge. The decision of Cornish, J., in Gopalakrishna Naicker v. Madhavanayaki Ammal : AIR1937Mad227 , is also distinguishable on the same ground, namely, that the Court which ultimately tried the suit had jurisdiction to try it as a small cause suit. Though the learned Judge referred to the decision of Stone, J., in Ramaswami Muthirian v. Arunachalam Chettiar : AIR1935Mad919 , it is evident that he did not rely upon the wide general observations contained in that case as he referred to the Full Bench decision in Bhagwati Pande v. Badri Pande I.L.R.(1931) All. 171 as not being inconsistent with Ramaswami Muthirian v. Arunachalam Chettiar : AIR1935Mad919 . This Full Bench held that a suit instituted as a small cause suit, if tried as an original suit in the circumstances mentioned in Section 35 when there was no other Judge in the local areas with adequate small cause powers to try it as a small cause suit, should be regarded as an original suit, and the decree passed in it would be appealable. I respectfully agree with this view and hold that Section 27 of, the Provincial Small Cause Courts Act does not operate in the circumstances of the case to bar any appeal from the order of the District Munsif's Court, Tiruvarur, refusing to set aside the ex parte decree in question.
9. The question next arises whether an appeal lies from the said order under Order 43, Rule (1)(d). The petitioner contends that the qualifying words 'in a case open to appeal' should be understood as referring to the appealability of the decree which is sought to be set aside and as in this case, the decree which was originally passed by a Court of Small Causes, was not appealable, the order refusing to set it aside was also not appealable under this clause. This contention is supported by the decision of a single Judge reported in Hira Lai v. Jhunni Lal (1922) 20 A.L.J. 208, but a Bench of this Court in Selvarayan Samson v. Amalorpavanadham (1927) 55 M.L.J. 262 was not inclined to accept that restricted interpretation of those words. The question was whether an appeal lay against an order refusing to set aside an ex parte decree passed on an application filed under para. 20 of Schedule II of the Civil Procedure Code and registered as a suit. It was argued that no appeal lay as it was not a 'case open to appeal' as the decree passed was not in excess of the award and therefore not appealable. The learned Judges observed:
It cannot be said that the words 'a case open to appeal' should be necessarily construed only with reference to the decree and to no other order.
10. They held that an appeal lay because there was an order filing the award and an appeal could have been filed against it. This view was approved and followed in Mahendra Chandra Datta Roy v. Basir Uddin I.L.R. (1937) 1 Cal. 135. It seems to me that when the pro, ceeding was taken up by the District Munsif of Tiruvarur on the original side of his jurisdiction, it must be deemed thereafter to be a case open to appeal, as, if the District Munsif had set aside the ex parte decree and passed a fresh decree after re-trial, such decree would have been appealable, in the view I have taken on the first point. If the restricted interpretation contended for by the petitioner must be rejected as untenable, there seems to be no reason why the general words should not be held to include a case of the kind now before me.
11. For these reasons, I hold that the appeal to the Court below was competent and dismiss this Civil Revision Petition with costs.