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Atwari and anr. Vs. Maiku Lal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in(1909)ILR31All1; 1Ind.Cas.553
AppellantAtwari and anr.
RespondentMaiku Lal
Excerpt:
civil procedure code (act, xiv of 1882), section 223 - execution of decree--decree passed by small cause court, transferred to munsif's court for execution--appeal--provincial small cause court's act (ix of 1887), section 27. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra..........contention is that in the present case the suit was not transferred to the munsifs court, nor were execution proceedings pending in the small cause court transferred to the munsifs court, but the decree was sent under section 223 of the code, as immovable property was sought to be sold. had the suit or the execution proceedings been transferred to the munsif's court under section 25 of the code of civil procedure, or had the execution proceeding been instituted in the munsif's court under section 35 of the provincial small cause court's act, the proceedings in the munsif's court might be regarded as proceedings held by a court of small causes. but this was not so. the court of small causes had no jurisdiction to sell immovable property, and for this reason the decree was sent to the.....
Judgment:

John Stanley, Kt., C.J. and Banerji, J.

1. This is a reference by the learned District Judge of Fanukhabad under Section 617 of the Code of Civil Procedure. The facts are these: A decree was made by a Court of Small Causes in a suit cognizable by that Court. As the decree-holder sought to realize the amount of the decree by attachment and sale of immovable property, the Court of Small Causes sent the decree to the Munsif's Court for execution under the provisions of Section 223 of the Code of Civil Procedure, An application for execution was accordingly made in the Munsif's Court. Objections were raised on behalf of the judgment-debtor. Those objections having been over ruled, the judgment-debtor appealed to the District Judge. In his Court the question was raised whether an appeal lay from the order of the Munsif. It was contended before him that as the suit was of the nature cognizable in a Court of Small Causes the proceedings in execution taken in the Munsif's Court should be deemed to be proceedings in a Small Cause Court suit and were therefore final. The fallacy which underlies this contention is that in the present case the suit was not transferred to the Munsifs Court, nor were execution proceedings pending in the Small Cause Court transferred to the Munsifs Court, but the decree was sent under Section 223 of the Code, as immovable property was sought to be sold. Had the suit or the execution proceedings been transferred to the Munsif's Court under Section 25 of the Code of Civil Procedure, or had the execution proceeding been instituted in the Munsif's Court under Section 35 of the Provincial Small Cause Court's Act, the proceedings in the Munsif's Court might be regarded as proceedings held by a Court of Small Causes. But this was not so. The Court of Small Causes had no jurisdiction to sell immovable property, and for this reason the decree was sent to the Munsif's Court in order that execution proceedings might be held in that Court. The order passed by the Munsif was an order which he might have passed in a suit instituted in his Court. From such an order an appeal ordinarily lay to the District Judge, and therefore in the present case the appeal preferred in the Court of the District Judge could in our judgment be entertained. Section 27 of the Small Cause Court's Act has no application to a case of this kind. This is our answer to lie reference.


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