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Khemchand and Co. Vs. Shivdanmal Agarwal - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 1827 of 1958
Judge
Reported inAIR1961Bom112; (1960)62BOMLR985; ILR1961Bom219
ActsCode of Civil Procedure (CPC), 1908 - Order 21, Rules 58 and 63; Presidency Small Cause Courts Act - Sections 9; City Civil Courts Act - Sections 3
AppellantKhemchand and Co.
RespondentShivdanmal Agarwal
Appellant AdvocateA.G. Parekh, Adv.
Respondent AdvocateM.A. Rane, Adv.
Excerpt:
.....rules 58, 63 - presidency small cause courts act (xv of 1882), section 9--property attached by city civil court in execution of decree passed by it--objection to attachment made by person and court deciding against him--suit by such parson filed under order xxi, rule 63 in small causes court to establish his right to attached property--whether small causes court has jurisdiction to entertain suit.;where in execution of a decree passed by the city civil court some property is attached by that court and under order xxi, rule 58, of the civil procedure code, 1908, objection to the attachment is made by a person and the court decides the matter against him, such a person cannot file a suit under order xxi, rule 63, of the code in the small causes court to establish his right, to the..........of damages from the defendants. it appears that the defendants had obtained a decree in the bombay city civil court against messrs. raghunathrai shrinivas for a sura of rs. 6547-2-0 and interest and costs and while executing the said decree against the judgment-debtors on 13-1-1956 attached through the sheriff of bombay certain moveable articles lying in one or the rooms of flat no. 13 on the third floor of ishwar bhuvan, 'a' road, churchgate. bombay belonging to and in possession of the plaintiffs. the plaintiffs' firm thereupon made an application under order 21, rule 58 of the code of civil procedure to the bombay city civil court for raising the attachment on the ground that the said articles belonged to the plaintiff firm and its partners. on 7th august, 1956 the city civil court.....
Judgment:
ORDER

1. This application is directed against the order passed by the learned Judge of the Small Causes Court at Bombay in suit No. 2357/12520 of 1956 whereby the suit was dismissed on the ground that the court had no jurisdiction to entertain it.

2. The plaintiffs, who are the applicants before me, filed the suit against the defendants for a declaration that the property attached and mentioned in Ex. C to the plaint belonged to and was in the possession of the plaintiffs on the date of the attachment and that the said property was not liable to be attached in execution of the defendants' decree against Messrs, Raghunathrai Shrinivas, and claiming return of the said property to the plaintiffs or in the alternative its value i.e. Rs. 1100/- from the defendants or in the further alternative claiming the said sum as and by way of damages from the defendants. It appears that the defendants had obtained a decree in the Bombay City Civil Court against Messrs. Raghunathrai Shrinivas for a sura of Rs. 6547-2-0 and interest and costs and while executing the said decree against the judgment-debtors on 13-1-1956 attached through the Sheriff of Bombay certain moveable articles lying in one or the rooms of Flat No. 13 on the third floor of Ishwar Bhuvan, 'A' Road, Churchgate. Bombay belonging to and in possession of the plaintiffs. The plaintiffs' firm thereupon made an application under Order 21, Rule 58 of the Code of Civil Procedure to the Bombay City Civil Court for raising the attachment on the ground that the said articles belonged to the plaintiff firm and its partners. On 7th August, 1956 the City Civil Court allowed the claim of the plaintiffs in respect of certain other articles which were mentioned in Schedule 'C' annexed to the plaint. The plaintiff firm, therefore, in the suit that it filed claimed those articles which were attached as belonging to it on the date of the attachment. In short, the plaintiffs' suit was for adjudication that the articles mentioned in Ex. C. to the plaint belonged to and were in possession of themselves and their partners on the date of the attachment and that the said property was not being liable to attachment and to be sold in execution of the decree. As a matter of fact, the plaintiff firm by the suit sought to set aside the attachment which was levied by the City Civil Court inasmuch as that Court had disallowed its claim preferred under Order 21, Rule 58. In answer to the plaint, the defendants filed their written statement of defence and it was contended that the Court had no jurisdiction to entertain and try the suit, inasmuch as the order of attachment was issued by the City Civil Court and to adjudicate upon that matter would mean to set aside the order of attachment levied by the City Civil Court over which the Small Causes Court had no jurisdiction. The point as to jurisdiction raised by the defendants was tried as a preliminary issue and the learned Judge of the Small Causes Court came to the conclusion that it had no jurisdiction to entertain the suit' the aim and object of which was to set aside the order passed by the City Civil Court in execution. It is against that order that the present revision application has been filed by the plaintiffs in this Court.

3. In support of this application, it was contended by the learned advocate appearing for the plaintiffs that so long as the suit was filed in a court of competent jurisdiction irrespective of whether such Court was of inferior or superior jurisdiction the order passed by such Court would be binding upon the Court which had passed the order in execution against which the suit was filed. It was, however, conceded that the suit was filed under Order 21, Rule 63 of the Code of Civil Procedure and that it was a suit of a statutory nature. It was only by reason of the order having been passed against the plaintiffs in this suit by the City Civil Court under Order 21. Rule 58 that the plaintiffs sought to file the suit under Order 21, Rule 63 for the purpose of establishing their right to the property which was attached.. Now, prima facie it would appear that such a suit, which is not really a suit of ordinary nature can only be filed in a Court in its ordinary jurisdiction which had passed the order under Order 21. Rule 58 in execution of its own decree. It seems to me that no other Court can possibly entertain such a suit at all. In this case, the suit was filed in the Small Causes Court and I am told that but for the Rules made by the High Court under Section 9 of the Presidency Small Cause Courts Act by which Rules 58 and 63 of Order 21, have been made applicable to the Small Causes Court, that Court would not have any jurisdiction at all to entertain a suit filed under Rule 63 of Order 21. It was conceded that the entire Civil Procedure Code which applied to the City Civil Court does not apply to the Small Causes Court. Only some of the provisions of the Code are made applicable by reason of the rules made by the High Court under. Section 9 of the Presidency Small Cause Courts Act. One can, therefore well infer that whatever provisions have been made applicable to the Small Causes Court by such rules they are intended only for the purpose of suits and proceedings that could properly be instituted in the Small Causes Court under the provisions of the Presidency Small Cause Courts Act. Accordingly, if a decree passed in a suit by the Small Causes Court is sought to be executed, it would be executed by the Small Causes Court itself and if in execution of such a decree any property is attached and if somebody comes forward to claim it as his own and not liable to be attached, the executing court will go into the question as to whether the property was liable to be attached or not by virtue of the application of Order 21, Rule 58 to that Court under the Rules made by the High Court. In the event of such a claim being rejected, the person who nut forward the claim might choose to avail of the statutory right provided by Order 21, Rule 63 which also was specially made applicable to the Small Causes Court by the rules made by the High Court in order to establish his right to the property which was attached in execution and thereby set aside the order passed by that very court in execution of the decree. Where, however, a decree is passed by the City Civil Court and in execution of that decree by the City Civil Court itself an objection is put forward by some body claiming that the property attached in execution of that decree was not liable to be attached and that it belonged to him and the Court in execution decides the matter against such person, then surely,, in my opinion, such person could not go to the Small Causes Court for the purpose of filing a suit under Order 21 Rule 63 of the Civil Procedure Code to establish his right to the property which was ordered to be attached by the City Civil Court in execution of a decree passed by itself and seek to obtain a decree which would have the effect of setting aside the order passed by the City Civil Court. The argument put forward on behalf of the plaintiffs would have had some force if the entire Code of Civil Procedure applied as much to the Small Causes Court as to the City Civil Court, but that is not the case. As a matter of concession or as a matter of convenience to the people instituting suits and proceedings in the Small Causes Court the High Court in exercise of its powers under Section 9 or the Presidency Small Cause Courts Act made rules applying some of the provisions including Rules 58 and 63 of Order 21 of the Code of Civil Procedure to that court. Accordingly, it cannot be said that the Small Causes Court has on overall jurisdiction over the orders passed by the City Civil Court in execution of its decrees, only because the value of the property attached by the City Civil Court comes within the purview of the Small Causes Court The jurisdiction of the Small Causes Court in such cases is not to be determined with reference to the value of the properly attached but with reference to the object and nature of the suit itself. The suit, as already observed, is not of an ordinary character it is a suit of a statutory nature specifically designed to set aside the order passed by the executing Court. Unless, therefore there is a specific provision to the contrary, such a suit, in my opinion, could only be brought in the same Court in its ordinary jurisdiction as the one which had made the order of attachment in execution of the decree.

4. In support of this view that I am taking a reference may be made to the decision in Palani Mudaliar v. Kaveri Animal : AIR1936Mad551 . The facts were practically on all fours with the facts of the present case before me and the learned Judge who decided that case held that the Small Causes Court had no jurisdiction to entertain the suit under Order 21 Rule 63 of the Code of Civil Procedure when the property was attached by the City Civil Court in execution of a decree passed by itself. In Course of the judgment the learned Judge referred to the decision of the Privy Council in Phul Kumari v. Ghanshyam Misra 35 Ind App 22 where it was observed that the statutory suit given to the unsuccessful party in claim proceedings under the Code involved in every case a prayer for setting aside of a summary order of a civil court. The learned judge observed:

'Now it seems to me to stand to reason that in such case the Small Cause Court cannot entertain a suit for which the aim and object is to release property from an attachment made by order of the City Civil Court. If the suit succeeded it would involve the setting aside of an order made by the City Civil Court over which the Small Cause Court has no jurisdiction or control whatever. I see no reason why the City Civil Court should not have entertained this suit. Section 3, City Civil Courts Act, (which is the same as Section 3 of our City Civil Courts Act) does not stand in the way. What it says is that the Court has jurisdiction to receive, try and dispose of all suits and proceedings of a civil nature not exceeding Rs. 2,500/- in value and arising within the City of Madras except suits or proceedings which are cognizable by the Small Cause Court. The value of the subject-matter of this suit (Rs. 95) is well within the jurisdiction value of suits which the Small Cause Court can entertain. But, as already stated I think this suit was not cognizable by the Small Cause Court.'

With respect, I agree with the view taken by the learned judge in that case. I have already stated that the value of the subject matter in this suit is undoubtedly within the jurisdiction of the Small Causes Court, but that by itself cannot decide the jurisdiction of the Small Causes Court for the purpose of entertaining a suit of this nature. A reference was made by the learned Advocate for the plaintiffs to K. I. Narainan v. K. I. Nilkandan Nambudri ILR 4 Mad 131. That was, however, a case where a suit was filed for the purpose of a declaration that the properties which were attached in execution of a decree belonged to the plaintiff and that they were not liable to be attached. In course of the judgment it seems to have been observed that where such a suit is filed in any competent court which may be an inferior court to the one which had passed the decree and was executing it, the decree passed by such a court would be binding upon the latter. I am afraid, much water has run down the Ganges ever since 1880. Besides, the observations which the learned Judges made in that case seem to be obiter. We have got the observations of the Privy Council, as pointed out above, that the aim and object of a suit of this nature is to set aside the order passed by the Court in execution under Order 21, Rule 58. If that is the effect of a decree that may be passed in a suit of this nature, then the suit could only be cognisable by the same Court in its ordinary jurisdiction which was executing the decree passed by itself or at best in a court of a concurrent jurisdiction, but certainly not in the Small Causes Court, to which, as stated above, the Code of Civil Procedure does not apply as a whole, but only such of the provisions thereof as have been made applicable by the Rules made by the High Court under Section 9 of the Presidency Small Cause Courts Act.

5. For these reasons, I agree with the view expressed by the learned Judge in the court below and hold that the Small Causes Court had no jurisdiction to entertain a suit of this type. The application is, therefore, dismissed and the Rule is discharged with costs.

6. Revision dismissed.


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