The main legal point established is that unless the jurisdiction of a civil Court is taken away altogether, or another method is provided for, a suit will be the proper remedy to get relief in respect of a civil right.

ORDER

R.C. Mitter, J. - This Rule has been obtained by the landlord whose suit to recover the balance of the transfer fee due to him under the provisions of Section 26-E, Ben. Ten. Act, has been dismissed by the learned Munsiff at Mymensingh on the ground that no suit lay. The position is this: Opposite party No. 1, The Nasirabad Loan Office, Co., Ltd., obtained a mortgage decree against opposite parties Nos. 2 and 3. In execution of that decree the mortgaged property was sold, but the mortgage decree not being fully satisfied, opposite party No. 1 obtained a decree for the balance under the provisions of Order 34, Rule 6, Civil P. C. In execution of this decree they put up the holding which is the subject matter of controversy, to sale. In the sale proclamation the holding was described as an ordinary occupancy holding. At the sale held by the Court opposite party No. 1 purchased the holding for Rs. 325 and deposited a sum of Rs. 65 in the executing Court, the sum being 20 per cent. of the purchase price. The sale was confirmed. The rent of this holding is Rs. 57-13-9 and therefore under the provisions of Section 26-E the landlord is entitled to either five times the annual rent or 20 per cent. of the purchase price whichever sum is greater. Five times the annual rent is Rs. 289-4-9 and therefore in accordance with the terms of that section the landlord is entitled to that sum in any case and not Rs. 65. The landlord accordingly instituted a suit to recover the balance of the money. The learned Munsiff has held that the value of the holding is Rs. 1,500 and on that basis the dues of the landlord will be Rs. 300. Mr. Bose who appears for the landlord says that his client will be satisfied if he is given a decree on the basis that he is entitled to five times the annual rent. In this Rule he prays for a decree for Rs. 224-4-9.

2. The question in this Rule therefore is whether the learned Munsiff was right in holding that no suit lay, but the proper remedy was by means of an application. In support of his view the learned Munsiff relies upon two decisions of this Court in Srinath Bose v. Debendra Nath Barari 1933 Cal 24 and Agbore Chandra Jalui v. Rajnandini Debi 1933 Cal 283 I shall indicate hereafter that the two aforesaid decisions have no bearing on the present question. In support of the Munsiff's view Mr. Karkoon has relied upon two cases of this Court, namely, the case in Sukh Chand Haldar v. Jajneswar Mandal 1932 Cal 135 and an unreported decision of a Division Bench in Padma Lochan v. Barada Kanta Civil Rule No. 1598 of 1934, Decided on 4th April 1935 decided on 4th April 1935. I shall deal with the question on the merits later on but it is necessary first of all to decide a preliminary objection which has been raised by Mr. Karkoon. The suit was instituted in the Court of the Munsiff at Mymensingh in his ordinary file. The Munsiff had no powers under Small Cause Courts Act to try suits of the value of this suit. The decree which he passed was a decree against which an appeal could have been preferred by the petitioner to the lower appellate Court. Instead of filing an appeal an application has been moved in this Court u/s 115, Civil P. C. There cannot be any doubt that this case falls within the provisions of Section 115, Clause (c) if not under Clause (b) of Section 115, because the Munsiff by erroneous decision on a point of law refused to exercise jurisdiction which is vested in law. This is the principle which has been laid down by Rankin, J., as he then was, in Hindley v. Joy Narayan Marwari 1920 Cal 305

3. The question therefore is whether this Court can exercise its revisional jurisdiction in these circumstances. In my judgment the revisional power u/s 115 is a bar only when an appeal lies to this Court. The fact that an appeal lay to the lower appellate Court will not take away the powers of this Court to revise the order of the Munsif. The language of Section 115 is that the High may call for the record of any ca