Skip to content


Mt. Mendha Kunwar Vs. Ganga Saran Sahu and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad
Decided On
Reported inAIR1927All740; 103Ind.Cas.344
AppellantMt. Mendha Kunwar
RespondentGanga Saran Sahu and ors.
Excerpt:
- .....in execution of the decree. under these circumstances the provisions of section 42 will attach to the proceedings while they are carried on in the court of a munsif. the court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself, and its order in executing such decree shall be subject to the same rules in respect of appeal as if the decree had been passed by itself. when the munsif passed an order in execution proceedings which were transferred to him by the court of small causes, the order must for the purposes of appeal be deemed to have been passed, as if the decree had been passed by the munsif. in the case of a decree passed by the munsif it will be appealable to the district judge under section 96, civil p.c., and so.....
Judgment:

Dalal, J.

1. The only important ground for decision in this appeal is ground No. 6, the lower appellate Court had no jurisdiction to hear the appeal because a second appeal cannot lie under the circumstances of the present case. Such a second appeal would be barred under the provisions of Section 102, Civil P.C., as was held in the case of Harakh v. Ram Sarup [1890] 12 All. 579 In the present case the decree was passed by a Court of Small Causes which transferred it for execution to the Court of a Munsif because the decree-holder applied for sale of immovable property belonging to the judgment-debtor, and under Section 7(a)(iii), Civil P. C, a Court of Small Causes cannot execute a decree against immovable property. In the Munsif's Court the judgment-debtor raised an objection, and the objection was decided in favour of the judgment-debtor. The decree-holder appealed and obtained a favourable decision from the Subordinate Judge. From that decision of the Subordinate Judge the present second appeal is filed The case quoted above referred to similar circumstances, and it was held that no second appeal would lie in respect of an order made in execution proceedings relating to matters governed by Section 102, Civil P.C., even when the decree was transferred for execution to the Court of a Munsif.

2. The argument may, however, arise that the lower appellate Court had no jurisdiction and it having acted without jurisdiction, the defendant (judgment-debtor) can apply to this Court in revision to set aside the order of the Subordinate Judge if passed without jurisdiction. The defendant-appellant's learned Counsel referred to the provisions of Section 24 in. Clause (4) of which it is laid down that the Court trying any suit transferred or withdrawn under that section from a Court of Small Causes shall, for the proposes of this suit, be deemed to be a Court of Small Causes. The contention was that even after the transfer to the Munsif the execution proceedings continued to be those of a Court of Small Causes, and there could be no appeal from an order passed on an objection made during those proceedings by the Court of the Munsif. Proceedings of transfer, however, were not taken under Section 24, but they were taken under Section 39, when the Court of Small Causes transferred the decree to the Court of the Munsif for execution for the reason that it had no jurisdiction to sell immovable property in execution of the decree. Under these circumstances the provisions of Section 42 will attach to the proceedings while they are carried on in the Court of a Munsif. The Court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself, and its order in executing such decree shall be subject to the same rules in respect of appeal as if the decree had been passed by itself. When the Munsif passed an order in execution proceedings which were transferred to him by the Court of Small Causes, the order must for the purposes of appeal be deemed to have been passed, as if the decree had been passed by the Munsif. In the case of a decree passed by the Munsif it will be appealable to the District Judge under Section 96, Civil P.C., and so the lower Court had jurisdiction to hear the appeal filed by the decree-holder in the present case.

3. I am, therefore, of opinion that the sixth ground of appeal fails. As no second appeal lies this appeal is dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //