JUDGMENT Greaves, J. - On the 13th of May, 1921 this Rule was issued at the instance of the defendant in the suit, calling on the other side to show cause, why a certain order passed on the 16th of February, 1921 should not he set aside, and the rule now comes before me for hearing. The plaintiff's suit was dismissed by the First Court and he preferred an appeal against the order of dismissal. Before the appeal was heard he presented a petition dated the 14th of February, 1921, alleging formal defects in the plaint and that one Indra Mohan Karmakar was not examined with regard to a Hukumnama which the petitioner alleged to be false and fraudulent; and he asked that he might be allowed to withdraw the original suit with liberty to bring a fresh suit. 2. The order of the 16th of February, 1921 allowed the plaintiff to withdraw from the suit and gave him liberty to bring a fresh suit, and the ground for making the order as stated in the judgment, is that the plaintiff could not examine the Gomasta who was alleged to have written the Hukumnama, I may say in passing that it appears from the judgment of the learned Munsiff that the Gomasta was actually present in Court at the time when the Hukumnama was produced by the defendant. It is difficult to see why, if he could have given material evidence, he should not have been called during the pendency of the suit in the First Court. 3. On behalf of the defendant who has obtained this rule, I am asked to interfere with the order of the lower Appellate Court under the provisions of S. 115, C.P.C. on the ground that the lower Appellate Court exercised a jurisdiction which he did not possess and also acted with material irregularity. 4. On behalf of the defendant I have been referred to the case of Kharda Co. Limited, v. Durga Charan Chandra (1910) 11 C.L.J. 45 = 5 I.C. 187. Mr. justice Mookherjee there discusses the provisions of O. 23, R. 1 under which the lower appellate Court purported to act and he decided that the reasons stated in sub-Cl. (b) of Cl. (2) must be ejusdem generis with sub-Cl. (a), that is to say to give the Court jurisdiction to act under O. 23, R. 1, Cl. Mr. justice Mookherjee there discusses the provisions of O. 23, R. 1 under which the lower appellate Court purported to act and he decided that the reasons stated in sub-Cl. (b) of Cl. (2) must be ejusdem generis with sub-Cl. (a), that is to say to give the Court jurisdiction to act under O. 23, R. 1, Cl. (2), there must have been either some formal defect or some thing in the nature of a formal defect ejusdem generis under sub-Cl. (b). Otherwise, he held, the Court has no jurisdiction to act under the order. 5. In the result in the case cited, the order made under O. 23, R. 1, Cl. (2) was set aside. That case was followed in the case of Maleulla Sardra v. Rani Hemangini Debi (1910) 11 C.L.J. 510 = 6 I.C. 629 and there is a further case to which I have been referred which is a decision to the same effect, namely, the case of Hriday Nath Parai v. Akshoy Lal Chowdhury (1916) 25 C.L.J. 454 = 39 I.C. 963 6. However on behalf of the plaintiff who obtained the order of the 16th February, 1921. I am asked to say that, having regard to the wording of S. 115, C.P.C. the Court has no jurisdiction to interfere in cases of this nature, because, it is said that the jurisdiction of the Court to interfere arises, when a case has been decided by any Court Subordinate to the High Court; and it is said that the order of the 16th February 1921 is not a decision of any Court Subordinate to the High Court within the meaning of S. 115, and I have been referred to the case of Bansi Singh v. Kishun Lal Thakur (1914) 41 Cal. 632 = 26 I.C. 203, where this Court held that the High Court had no power to deal with the case under S. 115 for the reasons already stated. Mr. Justice Coxe in delivering the judgment of the Court refers to the decision in Kharda Co. Ltd. v. Durgacharan (1910) 11 C.L.J. 45 = 5 I.C. 187. But he seeks to distinguish that decision on the ground, that he suggests, that the terms of S. 115 of the present CPC are not identical with S. 622 of the CPC of 1882 under which the decisions in 11 C.L.J. were given. 7. Ltd. v. Durgacharan (1910) 11 C.L.J. 45 = 5 I.C. 187. But he seeks to distinguish that decision on the ground, that he suggests, that the terms of S. 115 of the present CPC are not identical with S. 622 of the CPC of 1882 under which the decisions in 11 C.L.J. were given. 7. I have looked with some care at the wording of S. 622, C.P.C.; and although it is true, the wording is not the same, it seems to me that the substance is in effect the same. The words are as follows: The High Court may call for the record of any case in which no appeal lies to the High Court, the Court by which the case was decided appears to have execised a jurisdiction not vested in it by law." However modified, in S. 622, the word " decided" seems to me to be similar in its purport to the word "decided " in S. 115. If it be so, I am unable to understand bow the case; of Bansi Singh v. Kishun Lal Thakur (1914) 41 Cal. 632 = 26 I.C. 203, is really to be distinguished on the facts from the cases reported in 11 C.L.J. with the result, that, I think, I ought to, follow the two cases reported in 11 C.L.J. and also the decision in 25 C.L.J. in preference to the decision in Bansi Singh v. Kishun Lall (1914) 41 Cal. 632 = 26 I.C. 203. 8. The result is I must make the rule absolute with costs. The case will have to go back to the lower Appellate Court, in order that the appeal may be re-heard upon the materials on the record. Of course it will be open to the Judge to proceed under R. 27 of O. 41 of the Code, if he is satisfied, that the conditions which justify the productions of additional evidence in the Court of Appeal have been fulfilled in this case. Hearing fee two gold mohurs.