HAJI MAHOMED DIN Vs. EHJALLEN

JUDGEMENT

(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 5 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 11 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 22 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 2 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 23 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 31 March 1937, the judgment-debtor in his turn made an application under Section 38, and on 23 March 1938, a Bench of three Judges made an order setting aside the order made by the two Judges on 23 March 1937, thereby restoring the order of 22 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 22 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 22 December, 1936 under Section 38 was exhausted when the first Full Bench made the order of 23 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/s. Balmukund Brijmohan , 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/s. Mossop (1855) 17 CB 130. Lort- Williams J. however distinguished the facts construed in Baldeodas Lohia V/s. Balmukund Brijmohan from the facts in Surrut Kumari Dassee V/s. 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.