BALEKKALA SUBRAYA BHATTA Vs. NULIYAL GOVINDA BHAT

JUDGEMENT

(1.) The suit out of which this second appeal arises was dismissed by the trial Court but decreed on appeal

(2.) The first defendant is the appellant. He is the assignee from one Gowaramma of her rights under a certain maintenance decree obtained by her in a pauper suit filed by her. The present plaintiff was the first defendant and the present defendants 2 and 3 were also defendants 2 and 3 in that suit. In and by the final event and result of that litigation evidenced by Ex. P-3 dated 18 August, 1941, the present plaintiff was completely exonerated from the suit and the suit dismissed as against him. Gowaramma was directed to pay half the court-fee due to Government and defendants 2 and 3 the other half" if not already recovered by the Government in terms of the prior decrees passed in this suit." Plaintiff in the present case is seeking to recover back the amount paid by him to Government under a decree passed in the course of the former litigation (Ex. P-I) on 9 March, 1940, which became superseded by a later decree (Ex. P-3) on 18 August, 1941, passed pursuant to the order of remand made on appeal in Ex. P-2 on 19 February, 1941.

(3.) To this second appeal objection is taken in limine that Section 102 of the Civil Procedure Code bars it. The appellant in reply contends that the suit out of which this second appeal arises is not of the nature cognizable by a Court of Small Causes, because it is excepted from the cognizance of such a Court as a suit falling within Art. 2 of the Second Schedule of the Provincial Small Cause Courts Act which relates to a suit concerning an act purporting to be done by any person in pursuance of a judgment or order of a Court or of a judicial officer acting in the execution of his office. The question is : whether this suit concerns an act purporting to be done by any person in pursuance of a judgment or order of a Court. Mr. Srinivasa Rao insists that it is, because it concerns the act of payment of court-fee done by the plaintiffin pursuance of a judgment later reversed. The language of the article by its apparent generality does no doubt lend some support to this contention of the appellant. But as the decision of a Bench of the High Court of Calcutta in Prasanna Kumar Khan V/s. Umax Charan Hazra (1896) IC.W.N. 140, to which my attention has been drawn by Mr. K. P. Adiga for the respondent points out in terms which accurately expresses my own first impression of the scope and intention of the Art. having regard to the position of Art. 2, and also to the fact that there are many other articles dealing with suits against persons in regard to actions taken by them under the authority of judgments or orders which they have obtained as suitors, Art. 2 refers to acts done by persons not acting as suitors in pursuance of a judgment or order which gives permission so to act, but as ministerial officer or otherwise obeying the order of the Court.