1. The first point raised in this case that the opposite party should have proceeded by way of an application under Section 26-J, Ben. Ten. Act, and that no suit as framed was maintainable, is covered by authority of decisions of this Court, and must be decided in favour of the petitioners. The second point arising for consideration in this case, which is one of the grounds on which this Rule was granted, is that no appeal lay against the decision of the learned Munsif passed in the case, and that the decision of the Court of appeal below, reversing that of the learned Munsif, was without jurisdiction.
2. In view of the fact that the suit was one cognizable by a, Court of Small Causes, and that the Munsif who was invested with the powers of a Judge of the Court of Small Causes was competent to try the suit as a Small Cause Court Judge, the appeal against the decision of the Munsif was incompetent and the decision of the appellate Court was therefore without jurisdiction: This point seems also to be concluded by authority, so far as this Court is concerned. In view of the fact that the suit as framed was not maintainable, and in view of the fact that no appeal could possibly lie to the Court of appeal below, this Rule must be made absolute. The decision and decree passed by the learned Subordinate Judge of Noakhali reversing those of the Munsif, First Court, Sudharam, dated 18th February 1932, are set aside, and the decision of the Munsif in this case dismissing the suit is restored and affirmed on this basis only that the suit as instituted by the opposite party was not maintainable; an application under Section 26 J, Ben. Ten, Act, was necessary for the purpose of obtaining the relief that was claimed in the suit which was not maintainable. The fact that this Rule is made absolute would not stand in the way of the opposite party applying to the Munsif under Section 26-J, Ben. Ten. Act. I make no order as to costs in this Rule.