The main legal point established is the interpretation and application of Section 38, Presidency Small Cause Courts Act, emphasizing the requirement for an order to be made in the suit and the finality of decrees and orders.

ORDER

Panckridge, J. - This is an application u/s 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 5th 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 11th 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 22nd 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 2nd January 1937, the decree-holder applied u/s 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 23rd 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 31st March 1937, the judgment-debtor in his turn made an application u/s 38, and on 23rd March 1938, a Bench of three Judges made an order setting aside the order made by the two Judges on 23rd March 1937, thereby restoring the order of 22nd 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 22nd 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 u/s 38 was made without jurisdiction, because the Court's power to deal with the order of 22nd December 1936 u/s 38 was exhausted when the first Full Bench made the order of 23rd March 1937. He submits as a general proposition that the Court has no power u/s 38 to deal more than once with any order made in the suit. For this he relies on Buldeo Das Lohita Vs. Balmukund Brijmohan, AIR 1930 Cal 806 , 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 u/s 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. Mossop (1855) 17 CB 130. Lort-Williams J. however distinguished the facts construed in Buldeo Das Lohita Vs. Balmukund Brijmohan, AIR 1930 Cal 806 from the facts in Surrut Kumari Dassee v. Radha Mohan Roy (1895) 22 Cal 784 where Sale J. decided that the Small Cause Court had power u/s 38 to hear more than one application for a new trial in the same cause.

4. Mr. Clough for the defendant has relied on Biseesaur Das v. Johann Smidt (1906) 4 CLJ 46 where Woodroffe J. distinguished cases in which the result of an. application u/s 38 is to reverse the. previous order and cases where the result is to affirm i