JUDGMENT

Dunkley, J - The suit was brought in the Township Court of Einme. It was a suit for recovery of a sum of Rupees 100 on a promise to pay; and the point which has been argued before me is that this suit was a suit of a small cause nature, and as the Township Court of Einme is invested with powers under the Provincial Small Cause Courts Act to the extent of Rs. 100, therefore no appeal against the decision in this suit could lie to the Assistant District Court and, consequently, the decision of the Assistant District Court on appeal was a decision made without jurisdiction. In my opinion this contention must prevail.

2. One Maung Kyaw Din owed to the plaintiff-applicant a sum of Rs. 930 on a mortgage, and the defendant-respondent purchased the mortgaged land from Maung Kyaw Din, and it was alleged by the plaintiff-applicant in his plaint that the respondent satisfied the amount of the mortgage due by Maung Kyaw Din to him in the following manner: Rs. 500 was paid to him in cash; Rs. 300 was set off, being the amount of a debt which the applicant owed to the respondent: Rs. 30 was waivedand in regard to the balance of Rs. 100 that was left out-standing, the respondent promised to pay it in due course.

3. It has been argued on behalf of the respondent that this suit involved some interest in land, and therefore was not of a small cause nature, but this contention is not in my opinion correct, for it is clear that the mortgage of his land by Maung Kyaw Din in favour of the applicant was completely extinguished by the cash payment made by the respondent, by the cancellation of a debt due by the applicant to her, and by her promise to pay Rs. 100 to the applicant. In fact, the respondent does not contend that the land was transferred to her subject to any incumbrance. Consequently, the promise to pay Rs. 100 was an entirely new contract, which had no connection whatever with the land. The further contention advanced on behalf of the respondent is that Order 46, Rule 7, Civil P.C., is applicable to this case, and that as the applicant has submitted to the jurisdiction of the Township Court and, later, of the Assistant District Court on appeal, therefore he cannot be heard to question this jurisdiction now. In support of this contention the cases of Suresh Chunder v. Kristo Rangini Dassi (1894) 21 Cal. 249 and Ram Lal v. Kabul Singh (1903) 25 All. 135 have been cited, but these cases are inapplicable, for they refer to cases where either a Small Cause Court had declined jurisdiction or a regular Court had tried which was cognizable by a Small Cause Court. Now, the present suit was actually tried by a Court with small cause powers, and that is the point which distinguishes it from these authorities, and makes the provisions of Order 46, Rule 7, inapplicable to the matter now before me. The fact that this Small Cause Court, by an error, tried the suit in a regular way does not affect the matter at all. It has small cause powers, and therefore it is to be presumed that the case was tried under those powers. That being so, no right of appeal lay to the Assistant District Court, and the Assistant District Court acted entirely without jurisdiction in accepting the appeal. No consent or acquiescence of the parties can cure a lack of jurisdiction in law and the Assistant District Court had no authority in law to hear and decide this appeal. Consequently, the proceedings of the Assistant District Court of Myaungmya in Civil Appeal No. 33 of 1933 were void ab initio, and must be set aside, and the judgment and decree of the Township Court of Einme in Suit No. 86 of 1933 must be restored. The applicant will obtain his costs of the present application against the respondent; advocate's fee in this Court two gold mohuxs.