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Hafizur Rehman and ors. Vs. Mohammad Askari and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 233 of 1978
Judge
Reported inAIR1978All428
ActsCode of Civil Procedure (CPC) , 1908 - Sections 7 - Order 50, Rule 1
AppellantHafizur Rehman and ors.
RespondentMohammad Askari and anr.
Appellant AdvocateP.S. Dwivedi and ;Alop Dwivedi, Advs.
Respondent AdvocateShanti Swaroop, Adv.
DispositionRevision dismissed
Excerpt:
.....the general provisions contained in clause (a). the view expressed by the learned judge about the interpretation of section 7 is also coloured by the interpretation placed by him on order l, rule..........that order l rule i c. p. c. does not exclude the application of order xxi rules 35 and 36 to courts of small causes. this contention does not appear to be correct as clause (a)(ii) has the effect of excluding all those provisions of order xxi from their application to small cause courts as relate either to the execution of decree against immoveable property or to execution of decrees against the interest of a partner in partnership property. in view of the express provisions contained in clause (a)(ii) it was not necessary to repeat the same in clause (b) of order l rule i. by way of comparison it may be noted that order xiv is also not noted in clause (b) because of a specific provision in that behalf in clause (a) (iii).6. learned counsel for the revisionist has placed reliance.....
Judgment:
ORDER

K.N. Goyal, J.

1. In this revision preferred by the judgment debtors the only question pressed before me is that the ejectment decree passed by the Small Cause Court could not be transferred by it for execution to the Munsif's Court and that the latter had no jurisdiction to execute the decree. The decree holder opposite party No. 1 was the landlord of the suit property while the judgment debtors applicants were tenants. In view of certain Uttar Pradesh amendments suits by landlords for ejectment are now cognizable by Small Cause Courts. It is contended by learned counsel for the petitioners that as the suit itself is cognizable by Small Cause Court, therefore, the decree can also be executed by that court alone and not by Munsif's court.

2. Relevant portion of Section 7 C. P. C. reads as under:

'The following provisions shall not extend to courts constituted under the Provincial Small Cause Courts Act, 1887, or under the Berar Small Cause Courts Law, 1905, or to courts exercising the jurisdiction of a Court of Small Causes under the said Act or law, or to courts in any part of India to which the said Act does not extend exercising a corresponding jurisdiction, that is to say--

(a) so much of the body of the Code as relates to--

(i) suits excepted from the cognizance of a Court of Small Causes;

(ii) the execution of decrees in such suits;

(iii) the execution of decrees against immovable property; '

Order L Rule I of C, P. C. reads as Follows:

'The provisions hereinafter specified shall not extend to courts constituted under the Provincial Small Cause Courts Act, 1887 (9 of 1887), or under the Small Cause Courts Law, 1905, or to Courts exercising the jurisdiction of a court of Small Causes under the said Act or Law, or to courts in any part of India to which the said Act does not extend exercising a corresponding jurisdiction, that is to say--

(a) so much of this Schedule as relates to--

(i) suits excepted from the cognizance of a court of Small Causes or the execution of decrees in such suits;

(ii) the execution of decrees against immovable property or the interest of a partner in partnership property;

(iii) the settlement of issues; and

(b) the following rules and orders:

Order II, Rule I (frame of suit);

Order X, Rule 3 (record of examination of parties);

Order XV, except so much of Rule 4 as provides for the pronouncement at once of judgment;

Order XVIII, Rules 5 to 12 (evidence);

Order XLI to XLV (appeals);

Order XLVII, Rules 2, 3, 5, 6, 7; (review);

Order LI.'

3. In Section 7(a)(ii) the expression 'such suits' means suits excepted from the cognizance of the Court of Small Causes as mentioned under clause (i) thereof. Thus if the matter rested with Clauses (i) and (ii) then it could no doubt be argued that inasmuch as suits for eviction of tenants from immovable property are no longer excepted from the cognizance of Small Cause Court therefore, the execution of decrees passed by it in such suits is also not barred. However the matter does not rest there. Clause (iii) quoted above does not refer to 'such suits' at all. It provides for an absolute bar of execution of a decree by a Small Cause Court against immoveable property irrespective of whether the decree is passed by that very court or not.

4. The same is the position in respect of Order L Rule I. As would appear from Clause (a)(i) of Order L Rule I quoted above, this clause corresponds to Clauses (i) and (ii) of Section 7(a), while the first part of clause (ii) of Order L Rule I corresponds to clause (iii) of Section 7(a). In Sub-clause (i) under Order L Rule I also, there is reference to 'such suits' although in Sub-clause (ii) these words have not been used.

5. It has been argued that Order L Rule I C. P. C. does not exclude the application of Order XXI Rules 35 and 36 to Courts of Small Causes. This contention does not appear to be correct as Clause (a)(ii) has the effect of excluding all those provisions of Order XXI from their application to Small Cause Courts as relate either to the execution of decree against immoveable property or to execution of decrees against the interest of a partner in partnership property. In view of the express provisions contained in Clause (a)(ii) it was not necessary to repeat the same in clause (b) of Order L Rule I. By way of comparison it may be noted that Order XIV is also not noted in Clause (b) because of a specific provision in that behalf in clause (a) (iii).

6. Learned Counsel for the revisionist has placed reliance on a ruling of a learned single Judge in Brij Mohan v. Dattatreya, 1975 Mah. LJ 97. This ruling does support the argument of learned counsel. With due respect to the learned Judge who decided the case I find it difficult to accept the view expressed by him that Order XXI Rules 35 and 36 extend to Small Cause Courts merely because these provisions are not mentioned in clause (b) of Rule 1 of Order L. As observed earlier, it would have been redundant to repeat in clause (b) whatever is already covered by clause (a). Clause (a) as well as clause (b) of Order L Rule I relate to the provisions of the Schedule, and only those specific provisions of the Schedule were mentioned in Clause (b) which were not covered by the general provisions contained in Clause (a). The view expressed by the learned Judge about the interpretation of Section 7 is also coloured by the interpretation placed by him on Order L, Rule I.

7. The learned Judge further observed in the same ruling that execution of a decree for delivery of possession of premises in suit does not amount to 'execution of the decree against immoveable property' within the meaning of Section 7(a)(iii) and Order L, Rule l(a)(ii). With the utmost respect, I find myself unable to accept the view that execution of a decree for delivery of possession of immoveable property is not covered by expression 'execution of decree against immoveable property.'

8. The view taken by me above accords with a division bench ruling of this court reported in Sarjoo Prasad v. Addl. District Judge AIR 1975 All 13 (vide paragraphs 10, 11 and 12).

9. The amendment made in Section 39 by Act No. 104 of 1976 should not make any difference to this legal position. It cannot be said that the Munsif s Court is not a court of competent jurisdiction within the meaning of the new Explanation to Section 39. As held in Manzurul Haq v. Hakim Mohsin Ali AIR 1970 All 604 (FB) by a Full Bench of this Court and also in Bhaiyalal v. Tikaram AIR 1970 Madh Pra 237 (FB), the Small Cause Court is a court merely of preferential jurisdiction in respect of suits of the nature specified in Section 15(2) of the Provincial Small Cause Courts Act 1887 and not a court of exclusive jurisdiction. Accordingly the Munsifs Court or the Civil Judge's Court, according to the value of the suit, must also be held to be a competent court for purposes of Section 39. Inasmuch as the jurisdiction of the Small Cause Court is excluded so far as execution against immoveable property is concerned, it could not be the intention of the Legislature that an ejectment decree passed by a Small Cause Court (under the local amendments of Maharashtra and Uttar Pradesh which are prior to Act No. 104 of 1976) would be executable neither by that court nor by a regular civil court.

10. I thus find no force in the objections raised on behalf of revisionist against the execution of the decree by Munsifs Court.

11. In the result the Revision has no force and is dismissed accordingly. No order is made as to costs.


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