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Kasam Saheb Valad Sha Ahmed Saheb and anr. Vs. Maruti BIn Rambhaji - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1889)ILR13Bom552
AppellantKasam Saheb Valad Sha Ahmed Saheb and anr.
RespondentMaruti BIn Rambhaji
Excerpt:
mamlatdars courts - procedure applicable to such courts--bombay act iii of 1870, sections 17 and 18--civil procedure code not applicable. where a person is dispossessed in execution of a mamlatdar's decree against a third party, his proper remedy is by a suit, and not by a miscellaneous application. - .....if made to an ordinary civil court, was one which could be made under section 332 of the code of civil procedure. the mamlatdar declined to make any order on the application, as it was of the nature of a miscellaneous proceeding. it is argued, on behalf of the applicants, that section 328 and the following sections of the civil procedure code are applicable to mamlatdars' courts, which have been held to be civil courts; and that if those sections are not applicable to mamlatdar's courts, the mamlatdar ought, in the present case, to have given the applicants an opportunity of converting their application into a plant. we are unable to yield to either of these contentions. in mahndoji govind v. sonu bin davlata 9 bom. h.c. r 249 it was held that the mamlatdars' courts constituted under.....
Judgment:

Birdwood, J.

1. The applicants were dispossessed of certain land in execution of a decree made by the Mamlatdar in favour of the opponent and against Mahamad and Mohidin, and applied to the Mamlatdar to be restored to possession. The application, if made to an ordinary Civil Court, was one which could be made under Section 332 of the Code of Civil Procedure. The Mamlatdar declined to make any order on the application, as it was of the nature of a miscellaneous proceeding. It is argued, on behalf of the applicants, that Section 328 and the following sections of the Civil Procedure Code are applicable to Mamlatdars' Courts, which have been held to be Civil Courts; and that if those sections are not applicable to Mamlatdar's Courts, the Mamlatdar ought, in the present case, to have given the applicants an opportunity of converting their application into a plant. We are unable to yield to either of these contentions. In Mahndoji Govind v. Sonu bin Davlata 9 Bom. H.C. R 249 it was held that the Mamlatdars' Courts constituted under Bombay Act V of 1864 were subordinate Civil Courts within the meaning of Clause 2 of Section 5 of Regulation II of 1827, which confers on the High Court an extraortsinary jurisdiction over subordinate Civil Courts; and the decision in Bai Jamnu v. Bai Jadav I.L.R. 4 Bom. 168 shows that the High Court continues to exercise the same power of supervision over the Mamlatdars' Courts courts under Bombay Act III of 1876 as it exercised over those Courts as constituted previously to the passing of that Act. But it does not follow that the provisions of the Code of Civil Procedure are generally applicable to those Courts. The object of Bombay Act III of 1876 is to provide a special procedure of a very simple character for Mamlatdara' Courts; and there is no indication, in the Act, of any intention that the rules of the Code of Civil Procedure shall apply to cases for which the special procedure makes no provision. Sections 17 and 18 of the Act relate to the execution of the decisions or awards of Mamlatdars, and cannot, we think be supplemented, as to matters not referred to in those sections, by any of the provisions of the Code relating to the execution of the decrees of Civil Courts. Not only, as we have said does the Act disclose no intention that the Cod should be restored to for purposes as to which the Act is silent; but there are obviously many provisions in Chapter XIX of the Code which would be quite unsuitable to the mmary proceedings in Mamlatdar's Courts, as for instance, the provisions of Section 331. The Act does not seem to contemplate the case of a third party being ousted in execution of an order for possession, for such order is made only on a finding that the defendant himself is in possession and has wrongfully dispossessed the plaintiff within the six months preceding the suit. If a third party should b& ousted in execution of a Mamlatdar's award, his proper remedy would apparently be by a suit, and not by a miscellaneous application: see Govinda Bayaji v. Niku Joti I.L.R. 10 Bom. 78 . We can see nothing in the decision in Naya Bayaji v. Paddurang Vasudev I.L.R. 9 Bom. 97 opposed to this view. We are opinion, therefore, that it was not competent to the Mamlatdar, in the present case, to give the applicants any redress on their application. It was quite open to them to file a suit: but as they did not ask the Mamlatdar to allow them to change their application to a plaint, it cannot be said that he acted illegally or with material irregularity in not giving them an indulgence which they never sought. We see no reason to interfere with the Mamlatdar's order. The rule granted in this; case is, therefore, discharged with costs.


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