AHMED Vs. MOIDIN

JUDGEMENT

(1.) Two questions are raised in this second appeal. It is first contended that the Court which tried the original case was not a Court competent to try the present suit within the meaning of Section 13 of the Civil P. C. because the former suit was cognizable by a Small Cause Court, whereas the present suit is a suit to recover land and therefore a second appeal is admissible. Following the case of Subhammal V/s. Huddleston I.L.R. 17 Mad. 273, which we find to be in accordance with the view accepted in Calcutta Bhugwanbutti Chowdhrani v. Forbes I.L.R. 28 Calc. 78 we hold that the present suit was within the competency of the Court which tried the other suit notwithstanding that in that other case there could have been no second appeal. We see that in Srirangachariar V/s. Ramasami Ayyangar I.L.R. 18 Mad. 189 the case of Subbammal V/s. Huddleston I.L.R. 17 Mad. 273, was not cited. It was apparently overlooked.

(2.) The other question relates to the fact that the first decree was affirmed on the strength of an oath taken under the Oaths Act. We do not think that that makes any difference. There was a confirmation of the original decree. Moreover as, between the parties, we are of opinion that a decree arrived at after the taking of an oath on a question of fact involved in the case is none the less a final adjudication. The case of Jenkins V/s. Robertson L.R. 1 H.L. Sc. 117, which appears to have been misunderstood, has been explained in In re. South American and Mexican Company [1895] 1 Ch. 37. In the circumstances of the present case however the case of Keshava V/s. Rudran I.L.R. 5 Mad. 259, does not in strictness apply, for now the precise question decided in the former case is the question which arises in the present suit.

(3.) We dismiss the appeal with costs.