1. This is an application under Section 115, Civil P.C. After I had heard counsel on both sides, I indicated that the order which I thought should be made in the exercise of my discretion was one dismissing the application without costs. Although the parties were not willing to consent to such an order, neither of them offered any vigorous opposition to its being made, and strictly there is no necessity for me to deliver a formal judgment. Inasmuch however as one of the points raised is of considerable importance with regard to the procedure observed in the Court of Small Causes, I think it desirable to express my views upon it. The plaintiff on 5th August 1935, obtained a decree for rent amounting to Rs. 213-14-0. On 1st October 1935, one Mohamed Yusuf stood surety for the amount due under the decree. On 11th December 1936, an application was made by the surety for an order under Order 21, Rule 2, Sub-rule (2) for recording adjustment of the decree. This was tried on evidence and on 22nd December 1936, one of the learned Judges of the Small Cause Court came to a finding that the plaintiff had accepted a certain sum in full satisfaction of the decree, and ordered that his finding should be recorded.
2. Mr. Roy for the plaintiff has drawn my attention to the fact that the application was made by the surety and not by the judgment-debtor. He states that this is a procedure which the Code does not con, template. That may very well be so, but this somewhat technical point was only raised by Mr. Roy in his reply, and I do not propose to consider it further. On 2nd January 1937, the decree-holder applied under Section 38, Presidency Small Cause Courts Act, a Section with which I shall have to deal in greater detail hereafter, and a Bench of two Judges of the Small Cause Court on 23rd March 1937, set aside the order made on 22nd December 1936. The result of this was that the plaintiff became entitled to execute his decree in full. On 31st March 1937, the judgment-debtor in his turn made an application under Section 38, and on 23rd March 1938, a Bench of three Judges made an order setting aside the order made by the two Judges on 23rd March 1937, thereby restoring the order of 22nd December 1936. It does not clearly appear whether the first Full Bench order, that is to say, the order of 23rd March 1937, reversed the order of 22nd December 1936, on grounds of fact or on grounds of law, and I will assume that the order is not open to criticizm by reason that it proceeded on grounds of fact only.
3. Mr. Roy has maintained that the second order made under Section 38 was made without jurisdiction, because the Court's power to deal with the order of 22nd December 1936 under Section 38 was exhausted when the first Full Bench made the order of 23rd March 1937. He submits as a general proposition that the Court has no power under Section 38 to deal more than once with any order made in the suit. For this he relies on Baldeodas Lohia v. Balmukund Brijmohan : AIR1930Cal806 , where Lort-Williams J. held that where a Full Bench had granted an application for a new trial, a subsequent Full Bench had no jurisdiction under Section 38 to make an order setting aside the previous order. For the general principle, that statutes should be construed in such a manner as will secure the finality of legal decisions Mr. Roy has referred to a case on which Lort-Williams J. relied: Great Northern Railway Co. v. Mossop (1855) 17 CB 130. Lort-Williams J. however distinguished the facts construed in Baldeodas Lohia v. Balmukund Brijmohan : AIR1930Cal806 from the facts in Surrut Kumari Dassee v. Radha Mohan Roy (1895) 22 Cal 784 where Sale J. decided that the Small Cause Court had power under Section 38 to hear more than one application for a new trial in the same cause.
4. Mr. Clough for the defendant has relied on Biseesaur Das v. Johann Smidt (1906) 4 CLJ 46 where Woodroffe J. distinguished cases in which the result of an. application under Section 38 is to reverse the. previous order and cases where the result is to affirm it. The learned Judge appears to have held that under Section 38 there is jurisdiction to entertain applications with regard to the former class of cases but not with regard to the latter. The facts of this case appear to me in this respect to be more akin to the facts in Biseesaur Das v. Johann Smidt (1906) 4 CLJ 46 and in Surrut Kumari Dassee v. Radha Mohan Roy (1895) 22 Cal 784 than to those in Baldeodas Lohia v. Balmukund Brijmohan : AIR1930Cal806 . However, I do not think it necessary to say anything with regard to the broad question, as I hold on other grounds that, both the Pull Bench orders were made without jurisdiction, because the original order made on 22nd December 1936 was not one falling within the scope of Section 38. It follows that the order of 23rd March 1937 was also outside the scope of Section 38, and unless it was within that Section, the second Full Bench had no jurisdiction to deal with it on 23rd March 1938. Sections 37 and 38 form part of Chap. 6, Presidency Small Cause Courts Act, 1882, and that Chapter is headed 'New Trials and Ap. peals.' The two Sections were originally one, but I must construe them, if I can, as they stand and without regard to the language of the repealed Section for which the present Sections have been substituted. Section 37 is as follows:
Save as otherwise provided by this chapter or by any other enactment for the time being in force, every decree and order of the Small Cause Court in a suit shall be final and conclusive.
5. Therefore no order made in a suit by the Small Cause Court can be questioned unless it falls within the succeeding Section, Section 38. Further, I think it is plain that the Small Cause Court has no power to vary or amend any order that it may make, unless it derives such power from some statutory source. Section 38 runs thus:
Where a suit has been contested, the Small Cause Court may, on the application of either party made within eight days from the date of the decree or order in the suit (not being a decree passed under Section 522, Civil P.C.) order a new trial to be held or alter, set aside or reverse the decree or order, upon such terms as it thinks reasonable, and may, in the meantime, stay the proceedings.
6. I must emphasize the fact that to fall within the scope of Section 38 an order must not only be made in the suit, but it must be the order made in the suit; and I take this to mean that it must be an order which in some way or other disposes of the suit, for example, an order dismissing a suit for default. Unless it is the order made in a suit in this sense, the Court has no power in my opinion to deal with it under Section 38. It is clear that an order made in execution proceedings, such as an order under Order 21, Rule 2, cannot be the order made in the suit in this sense.
7. A further argument for this view is to be found in the, opening words of the Section. It is quite reasonable that where a suit has not been contested there should be nothing in the nature of an appeal against the order disposing of it. But it would be quite illogical to make the right to appeal against orders made in execution proceedings dependent upon whether the suit had been contested or uncontested. For example, if proceedings are taken under Order 21, Rule 50 to execute a decree against someone who has not been served with the summons in the suit on the ground that he is liable as partner in respect of the decree, it ought not to affect his right of appeal, if any, that the suit has not been contested by the persons who have been served with the summons. It is perhaps significant that in Kanji Vishram v. Jivraj Dayal (1930) 17 AIR Bom 412, where a person whom it was sought to render liable under Order 21, Rule 50 desired to invoke Section 38 in respect of an order making himself liable, the argument proceeded on the basis that the proceedings under Order 21, Rule 50 were 'the suit' within the meaning of Section 38. Mr. Roy has not proceeded upon this ground, but has argued that the order of 22nd December 1936 was an order made in the original suit, that is to say the suit in which the decree for rent was passed.
8. The position therefore is this : The first Full Bench had no jurisdiction by their order of 23rd March 1937 to vary the order made on 22nd December 1936, because it was not the order made in the suit within the meaning of Section 38. The proper course for the defendant, if he felt aggrieved, was to apply to this Court under Section 115 as soon as the first Full Bench had made their order. Similarly the order of the first Full Bench was not the order made in the suit, and accordingly the second Full Bench should have dismissed the application made to it as not falling within the scope of Section 38. The result is that the defendant had had an order passed against him which the Court had no jurisdiction to make. On the other hand he has himself to blame for seeking his remedy in a Court which in its turn had no jurisdiction to deal with the matter. In these circumstances, in the exercise of my discretion I think that the justice of the case will be as satisfactorily met as the circumstances allow if I dismiss the application without costs.