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Puttamma Vs. Veerabhadra Mudaliar and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberMisc. Appeal Nos. 38 and 39 of 1950-51
Judge
Reported inAIR1951Kant22; AIR1951Mys22
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 63; Mysore Civil Courts Act - Sections 11
AppellantPuttamma
RespondentVeerabhadra Mudaliar and anr.
Appellant AdvocateV. Krishnamurthy, Adv.
Respondent AdvocateC.N. Ramaswami Sastry, Adv.
DispositionAppeal allowed
Excerpt:
.....was a material irregularity in the judgment as the munsiff bad not given a finding on all the issues. issues 1 and 2 involved, not pure questions of law, but questions of fact and when the parties had through their counsel informed the court that they did not want findings on those issues, we think the munsiff was perfectly justified in not giving such findings issues 1, 2, 6, 7 and 8 related to the market value of the property, misjoinder of causes of action and sufficiency of court-fees, and apparently the counsel for the defendants in the trial court thought and it appear to us quite reasonably that there was no substance in the objections on those points and had thought fit not to press them. krishnamurthi, learned advocate for the appellant, that in any event jurisdiction of..........the effect that all the parties were then agreed that there was no need to give findings on those issues. issues 1 and 2 involved, not pure questions of law, but questions of fact and when the parties had through their counsel informed the court that they did not want findings on those issues, we think the munsiff was perfectly justified in not giving such findings issues 1, 2, 6, 7 and 8 related to the market value of the property, misjoinder of causes of action and sufficiency of court-fees, and apparently the counsel for the defendants in the trial court thought and it appear to us quite reasonably that there was no substance in the objections on those points and had thought fit not to press them. while the learned subordinate judge has not referred at all in his judgment to the note.....
Judgment:

Vasudevamurthy, J.

1. The plaintiff who is the appellant before us filed two claim petitions in Misc. Cases Nos. 35 and 36 of 1947-48 in the Court of the First Munsiff of Mysore objecting to the attachment of a house in execution of two decrees obtained by defendants 1 and 4 against defendants in O. S. No. 406/45-46 and O.S. No. 328/46-47. Her claims were disallowed and the filed a suit O. S. 526/47-48 under Order 21, Rule 63, Civil P. C., in the same Court for setting aside the summary orders passed in these miscellaneous proceedings. She first paid on her plaint a court-fee of Rs. 12-8-0 fixed under Article 11 of Schedule II, Mysore Court-Fees Act, and later on paid a further sum of Rs. 12-8-0 as she was asking for two orders to be set aside. In the plaint the value for jurisdiction was not given. In their written statements defendants l and 4 pleaded that the property included within the boundaries given in the schedule to the plaint really consisted of two houses and that their value was more than Rs. 5,000 and that the Munsiff Court had no jurisdiction to try the suit.

2. It is recorded by the Munsiff in para. 3 of his judgment that the objections in respect of which issues 1, 2, 6, 7 and 8 were framed, viz. whether the plaint schedule property comprised one house or two houses, whether its value was beyond the Court's pecuniary jurisdiction, sufficiency of court-fees and misjoinder were agreed to be unnecessary at the stage of the arguments by all the counsel appearing in the case. The Munsiff also adds that they have become unnecessary in view of the reply statement filed by the plaintiff confining her claim only to door No. 294/1 and her having paid the additional court-fee for setting aside the two summary orders. The Munsiff recorded his findings on all the other issues relating to the merits of the case and decreed the suit in favour of the plaintiff. Two appeals R. As. Nos. 54 and 55 of 1949-50 were filed by defendants 4 and 1 respectively against the judgment of the Munsiff.

3. In the appeal memo in R. A. No. 54/49-50 filed by defendant 4 no ground was taken regarding the jurisdiction nor is a complaint made that the Munsiff erred in not recording his findings on all the issues In the appeal memo in R. A. No. 65/49-50, however, defendant-appellant 1 complained that the lower Court erred in not giving findings on all the issues and in not noticing the defects as to multifariousness and jurisdiction. The learned Additional Subordinate Judge heard both the appeals together. He set aside the judgment of the Munsiff and remanded the case to him for fresh disposal according to law after giving findings on all the issues. The learned Subordinate Judge considered that issues 1 and 2 were important once as they related to the jurisdiction and that as the Munsiff had not given a finding on these issues, his judgment was not in accordance with law. He also considers that there was a material irregularity in the judgment as the Munsiff bad not given a finding on all the issues. He has nowhere in his judgment referred to the record in Para. 3 of the judgment of the Munsiff to the effect that all the parties were then agreed that there was no need to give findings on those issues. Issues 1 and 2 involved, not pure questions of law, but questions of fact and when the parties had through their counsel informed the Court that they did not want findings on those issues, we think the Munsiff was perfectly justified in not giving such findings Issues 1, 2, 6, 7 and 8 related to the market value of the property, misjoinder of causes of action and sufficiency of court-fees, and apparently the counsel for the defendants in the trial Court thought and it appear to us quite reasonably that there was no substance in the objections on those points and had thought fit not to press them. While the learned Subordinate Judge has not referred at all in his judgment to the note by the Munsiff we do not also find any explanation in the appeal memo in R. A. No. 55 of 49-50 as to how after abandoning the pleas, covered by issues 1, 2, 6, 7 and 8 defendant 1 could be permitted to re open the matter in the appellate Court. In this connection it is significant to observe that in R. A. No. 54/49-50 no grounds are at all taken in these matters.

4. It is contended by Mr. V. Krishnamurthi, learned advocate for the appellant, that in any event jurisdiction of the Court in a suit like the present one, under Order 21, Rule 63, Civil P. C., is determined, not by the market value of the property attached but by the amount of the decree for which it is attached. He argues that what the plaintiff in such a suit asks for is a declaration that the property is or is not liable to be attached and proceeded against for the debt and the subject-matter of the suit is therefore not the house or land but its liability either to be attached or relieved from attachment in respect of the particular debt. In support of this position Mr. V. Krishnamurthi relies on as unreported case decided by this Court in Misc. case No. 64 of 43-44. In that case the plaintiff sued to set aside a summary order passed against him in miscellaneous proceedings directing delivery of possession of a house. The house had been sold in execution of a decree and purchased by the defendant. The plaintiff who was in possession under a prior agreement of sale resisted such delivery. His obstruction was ordered to be removed and be brought a suit to get rid of that order. It was contended in that suit that the value of the house concerned was over Rs. 2500, and beyond the jurisdiction of the Munsiff. That contention was negatived by the High Court. In their judgment the learned Judges point out that in a suit under Order 21, Rule 63 Civil P. C., the unsuccessful claimant or the attaching decree holder was affected by the attachment of the property only to the extent of the decree-amount for the realization of which alone the attachment was laid on the property and the value of the subject-matter of the suit in such cases was represented either by the decree-amount or the value of the attached property whichever was more and could not always be the value of the property. They refer in support of their decision to Krishnasami Naidu v. Somasundasamii 30 Mad. 335 (17 M L. J. 95 F. B.); Phul Kumiri v. Gansyam Misra, 35 Cal. 202 (35 I. A. 22 P. C.); Khetrapal v. Mt. Mumtaz Begam, 38 ALL 72: (A. I. R. (2) 1915 ALL. 436) and Anandi Kunwar v. Ram Niranjan Das, 40 ALL. 605; (A. I. R. (5) 1918 ALL. 324). In Mysore there is in existence no such enactment like the Suits Valuation Act. Under Section 11, Mysore Civil Courts Act, it is provided that only when the subject-matter of a suit is a land, house or garden, the value for purposes of jurisdiction shall be the same as the value for purposes of court-fee. The subject-matter of a suit of the kind before us is not the house but the liability for being proceeded against for the decree-amount. By way of analogy 10 Mys. L. J. 25 may be referred to. It was a suit by a landlord against a tenant for ejectment. It was held in that case that the subject-matter of such a suit for purposes of jurisdiction was the tenant's rights in the land and not the land itself and that Section 11, Civil Courts Act, could not apply to such a suit so as to make the valuation for purposes of court-fee and jurisdiction the same. It is unnecessary to refer in detail to the cases cited above. Those cases, and Moolchand v. Ramkishan : AIR1933All249 , and Radhabai v. Madho Rao. A. I. R. (31) 1944 Nag, 308: (I. L. R. (1944) Nag. 783) support the view that in a suit under Order 21, Rule 63, Civil P. C. where the value of the property exceeds the decrial amount the value for the purposes of jurisdiction is the decretal amount. If it so held, in the present case it cannot be denied that the Munsiff had jurisdiction to hear the suit O. S. 528/46-47 as the aggregate amount of both the decrees is much less than Rs. 2,500 viz., Rs. 1500.

5. Mr. C. N. Ramaswamy Shastry, learned advocate for the respondent, relies on Tun Thein Mg. v. Maung Sin, 12 Rang. 670: (A.I.R. (21) 1934 Rang. 332): Subramanyam v. Narasimham, 56 M. L. J. 489; (A I. R. (16) 1929 Mad. 323) and Shiv Ram v. Khurshed Ahmad, I. L. L.J. 87, for the contrary view. In Tun Thein Mg. v. Maung Sin, 12 Rang. 670: (A. I. R. (21) 1934 Rang. 332) the point which directly arose for decision was only regarding the court-fees payable in such a suit and not the value for purposes of jurisdiction. In Subramanyam v. Narasimham, 56 M. L. J. 489; (A. I. R. (16) 1929 Mad. 323) an objection was taken in a subsequent suit that the appeal in an earlier suit under Order 21, Rule 63, Civil P. C. filed in the District Court and the second appeal thereon were all incompetent as the first appeal had been filed in the District Court though the amount of the decree under which the attachment was effected was over Rs. 5,000. Wallace J. while repelling that contention has no doubt observed without any discussion of the case law that the valuation for purposes of the appeal was the value not of the decree but of the property sought to be recovered to satisfy the debt; and the latter was within the appellate jurisdiction of the District Court. But the point has really been disposed of by him on the ground that as no objection as regards the valuation had been taken in the earlier appeal in the District Court, the same could not be allowed to be heard under the provisions of the Suits Valuation Act and specially so in a collateral proceeding. For the question before us there is a clear and more direct authority in Krishnasami Naidu v. Somasundasami, 30 Mad. 335; (17 M. L. J 95 F. B).

6. Shiv Ram v. Khurshed Ahmad, 1 L. L. J. 37 is a decision of a single Judge In the report of the judgment there is no discussion of the question, and there is no reference to any decided cases of the other High Courts, except to some earlier decision of the same Court and to Phul Kumari v. Ganshyam Misra, 35 Cal. 202: (35 I. A. 22 P. C.) and which really does not support his view with regard to jurisdiction.

7. For the above reasons we find that the Subordinate Judge's orders of remand are not correct and they are set aside. He will hear the appeals afresh and dispose of them is accordance with law. These appeals are accordingly allowed with costs (Advocate's fee Rs. 25 in each appeal).


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