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Chaudhry Bindraban and ors. Vs. Chotey Lal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1937All194
AppellantChaudhry Bindraban and ors.
RespondentChotey Lal
Excerpt:
- .....judgment-debtor is an agriculturist. the decree-holder moved the-court to create a charge on the immoveable property of the judgment-debtor in virtue of the terms of section 3, sub-section (2), u.p. agriculturists' belief act of 1934. the learned judge of the small cause-court refused the applicant's prayer holding, that a charge cannot be created on immoveable property in a small cause court case. sub-section (2), section 3, u.p. agriculturists belief act, is in the following terms:the court may, at the time of passing an. instalment decree against an agriculturist either attack his immoveable property, if any, or declare a charge on such property within, the meaning, of section 100, t.p. act of 1882 to the extent of the amount decreed.2. by section 7, civil p.c., the small cause.....
Judgment:
ORDER

Thom, J.

1. This is an application in Civil Revision under Section 25, Small Cause Court Act. The judgment-debtor is an agriculturist. The decree-holder moved the-Court to create a charge on the immoveable property of the judgment-debtor in virtue of the terms of Section 3, Sub-section (2), U.P. Agriculturists' Belief Act of 1934. The learned Judge of the Small Cause-Court refused the applicant's prayer holding, that a charge cannot be created on immoveable property in a Small Cause Court case. Sub-section (2), Section 3, U.P. Agriculturists Belief Act, is in the following terms:

The Court may, at the time of passing an. instalment decree against an agriculturist either attack his immoveable property, if any, or declare a charge on such property within, the meaning, of Section 100, T.P. Act of 1882 to the extent of the amount decreed.

2. By Section 7, Civil P.C., the Small Cause Court has no jurisdiction to execute decrees against immoveable property. The creation, of a. charge upon the property however is something entirely different from the execution of a decree against the property. The attachment of immoveable property would be a step in execution. The creation of a charge is not a step in execution and it is clear therefore in my judgment that a Small Cause Court, though it has no jurisdiction to attach an immoveable property has jurisdiction to create a charge thereon. In the result the application is allowed and the order of the Small Cause Court is set aside. The record will be returned to the Small Cause Court with a direction that it should dispose of the application for the creation of a charge on the defendant's immoveable property according to law. The applicant is entitled to his costs in this application.


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