Pigot and Stevens, JJ.
1. In this case the plaintiffs claim from the defendant a sum of money, being what they say is the proportion of the rent claimed in a suit in which an exparte decree was obtained, an amount which is proportionate to the interest which the defendant had in the tenure, a dur-mokurari tenure, in which it is difficult to suppose that the defendant had not some, and indeed & considerable, interest. The plaintiffs had a four annas interest in this tenure, and they allege that the defendant had a twelve annas interest in it, although he was not the recorded tenant, but the person from whom he had purchased so far back as 1290 still had his name recorded as tenant. As we have said, there was an exparte decree for rent due; it was for rent due for the years 1295 to 1298, and execution being taken out by the person who was the holder of the decree against two annas out of the plaintiffs' four annas share in the tenure, the plaintiffs paid the entire amount of the decree; they now claim from the defendant twelve annas of that sum, alleging that the defendant is the owner, although not the recorded owner, of twelve annas of the tenure.
2. The defendant set up several defences, amongst them that the decree was obtained by collusion, but no evidence was adduced in support of any of the defences, in short, he appears to have left the case to be worked out by the plaintiffs.
[After finding on the merits of the case that the plaintiffs had not sufficiently proved the defendant's interest in the durmokurari holding, and remanding the case to enable him to give such evidence, the learned Judges continued.]
3. It was argued that the appeal would not lie under the Full Bench case of Krishno Kamini Chowdhrani v. Gopi Mohun Ghose Hazra I.L.R. 15 Cal. 652. We are disposed to think that Clause 41 of the Second Schedule of the Small Cause Court Act of 1887 so modifies the law held by that Full Bench to be the result of the old Small Cause Court Act coupled with the Contract Act as to exclude such a suit as is contemplated by Clause 41 of that Schedule from the jurisdiction of the Small Cause Court. At any rate we should not reject the appeal on that ground, entertaining as we do rather the opinion that the Act of 1887 restores the law laid down by Sir Barnes Peacock in the well-known Full Bench case of Rambux Chittangao v. Modhoosoodun Paul Chowdhry B.L.R. Sup. Vol. 675 : 7 W.R. 377 before the Contract Act was passed, and that such a suit will not lie in the Small Cause Court.