ABDUL HAQUE CHOWDHURY Vs. ABDUL HAFEZ

JUDGEMENT

(1.) On the 23 April 1906, the defendant-appellant before us obtained an ex parte decree, against the plaintiff-respondent in the Calcutta Small Cause Court. The decree was sent for execution to the Munsif of Satkania, in the District of Chittagong, where the parties have their permanent residence, and on the 25 January 1907, a peon arrived at the house of the plaintiff-respondent with a writ of attachment against the movables of the judgment-debtor. This event constituting a cause of action, the plaintiff brought a suit in the local Munsif's Court and prayed (1) that the ex parte decree of the 23 April 1906 be set aside as fraudulent and (2) that the said decree be declared null and void, inoperative and ineffectual, and that an order be made that it be not executed against the defendant (the present plaintiff.)

(2.) On the merits, the first Court found that the ex parte decree was fraudulent and liable to be declared null and void, but the Munsif proceeded to hold that he had no jurisdiction to try the suit by reason of Section 94 of the Presidency Small Cause Courts Act. On appeal, the Subordinate Judge has decreed the suit with reference to both the prayers of the plaintiff.

(3.) It is conceded that Section 94 of the Presidency Small Case Courts Act does not stand in the way of the plaintiff in this litigation. What that section provides is that no suit shall lie on any decree passed by such a Small Cause Court. This is not a suit on any decree. The judgment of the Subordinate Judge on this point is correct. But the learned Vakil for the defendant appellant has argued that the Satkania Court had no jurisdiction to try the suit, and that the plaintiff should have taken action in the Calcutta Court of Small Causes where the ex parte decree was obtained against him.