Shamshudin Rowthen and Others vs Asa Bivi Ammal and Others

In our opinion this suit is one which ought to have been tried as a Small Cause Court suit as there was no real question of title.

But there was an order-under Section 23 of Act IX of 1887 which order is final and has the effect of giving jurisdiction to the Court having

ordinary jurisdiction.

The case was accordingly tried by the District Munsif. There was an appeal to the Subordinate Judge and it is said that the point of jurisdiction

was not pressed. The appeal was heard on the merits.

Now the appellants seek to have all the proceedings set aside in order that the plaintiffs may begin their suit again in the Small Cause Court. The

case is not unlike that reported in Mahamaya Dasya v. Nitya Hari Das ILR 23 C. 425. In that case and in the case reported in {In re Hansambhar

Abdulabhai ILR 20 B. 283, it was held that the order u/s 23 was final.

Adopting this opinion we must dismiss the appeal with costs.

But the decree must be modified by striking out the words ""on the security of the property the. defendants had from Bacha Rowthen,"" and

making it clear that the defendants are liable as representatives of Bacha Rowthen and the assets in their hands.