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Nathu Ganesh Vs. Kalidas Umed - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Judge
Reported in(1878)ILR2Bom365
AppellantNathu Ganesh
RespondentKalidas Umed
Excerpt:
suit by plaintiff as owner to recover moveable property under rs. 500 - jurisdiction--court of small causes--act x of 1877. - michael westropp, c.j.1. the plaintiff sued in the ahmedabad court of small causes, as alleged owner of certain moveable property under rs. 500 in value, to recover that property or its value from the defendant, kalidas umed who had caused it to be attached in execution of a decree obtained by him against vanarsi rangji.2. the question is, whether the court of small causes has jurisdiction to entertain the suit, it appearing that the plaintiff's claim had been rejected upon an application made by him under section 246 of act viii of 1859, in the cause in which the decree, under which the attachment had been made, was passed. the judge is of opinion in the affirmative, but has referred the question to this court. woomesh chunder bose v. muddun mohun sircar 2 cal. w.r. 44 is in point--the.....
Judgment:

Michael Westropp, C.J.

1. The plaintiff sued in the Ahmedabad Court of Small Causes, as alleged owner of certain moveable property under Rs. 500 in value, to recover that property or its value from the defendant, Kalidas Umed who had caused it to be attached in execution of a decree obtained by him against Vanarsi Rangji.

2. The question is, whether the Court of Small Causes has jurisdiction to entertain the suit, it appearing that the plaintiff's claim had been rejected upon an application made by him under Section 246 of Act VIII of 1859, in the cause in which the decree, under which the attachment had been made, was passed. The Judge is of opinion in the affirmative, but has referred the question to this Court. Woomesh Chunder Bose v. Muddun Mohun Sircar 2 Cal. W.R. 44 is in point--the suit there having been brought, as here, by the alleged owner of the property attached--and supports the jurisdiction of the Court of Small Causes. Ram Dhun Biswas v. Kefal Biswas 10 Cal. W.R. 141 is distinguishable, on the ground that the plaintiff there was not the alleged owner of the property, but the attaching decree-holder. The Judge, who referred that case to the High Court of Calcutta, did, expressly on that ground, distinguish it from Woomesh Chunder Bose v. Muddun Mohun Sircar 2 Cal. W.R. 44. Peacock, C.J., in his judgment does not notice that case; but his brief remarks would, so far as we understand them, appear to place no weight on the distinction, inasmuch as his decision appears to proceed upon the ground that 'the suit, which by Section 246 of Act VIII of 1859 is given to a party against whom an order under that section is made, is 'a suit to establish his right,' which suit Peacock, C.J., and Mitter, J., thought 'not maintainable in a Small Cause Court.' Jethabhai Bhaichand v. Bai Lakhu 6 Bom. H.C. Rep. 27 for which no reasons were given, also was a suit by a decree-holder, and, therefore, is not in point. Ram Gopal Shah v. Ram Gopal Shah and others 9 Cal. W.R. 136 Civ. Rul. was a suit to enforce a mortgage lien, and, therefore, is not in point. In January 1870, L. Jackson, J., and Glover, J., in Moozdeen Sazee v. Dinobundho Gossamee 13 Cal. W.R. 99 which seems to have been a suit by the alleged owner of the property, treated that case as on all fours with Ram Dhun Biswas v. Kefal Biswas 10 Cal. W.R. 141 and they, accordingly, held that the Small Cause Court at Jessore could not entertain the suit; but, if we be right in gathering from the terms of the reference made by the Judge of that Court that the plaintiff there was the alleged owner of the property, that case does not seem to be on all fours with Ram Dhun Biswas v. Kefal Biswas 10 Cal. W.R. 141 which was a suit by a decree-holder.

3. Janakiammal v. Vithenadien 5 Mad. H.C. Rep. 191 decided in February 1870, is in point here--it being a suit by the alleged owner complaining of a wrongful seizure. The High Court of Madras (Scotland, C.J., and Innes, J.) held that the Court of Small Causes, had jurisdiction. That decision was followed in 1875 by Morgan, C.J., and Kindersley, J., in Kundeme Naine v. Ravoo Latchmipati 8 Mad. H.C. Rep. 36, which also was a suit by the alleged owner to recover the property or its value. The reports of those Madras cases do not show that any of the Calcutta decisions above mentioned or the Bombay decision were brought to the notice of the Madras High Court. We do not think that the concluding passage in Section 246 of Act VIII of 1859, which leaves it open to a party, against whom an order upon an application under that section has been made, 'to bring a suit to establish his right at any time within one year from the date of the order,' prevents a tribunal, before Which such a party might have brought his suit if there had not been any application made under that section, from entertaining it. Whenever a person sues to recover property alleged to have been wrongfully taken from him, he sues to establish his right to it, and, if he did not so establish his right, he could not recover it in specie or compensation by way of damages for it. Whether the new Civil Procedure Code (Act X of 1877) allows such a suit as the present, by an alleged owner, to be brought in a Court of Small Causes, it will be time enough to say when the question arises. And we refrain from giving any opinion on the question whether or not an attaching decree-holder, against whom an order has been made under Section 246 of Act VIII of 1859, can maintain a suit in the Court of Small Causes to establish his right to retain his attachment. We concur in the opinion of the Judge of the Court of Small Causes at Ahmedabad, that he may entertain the present suit.


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