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Chhotey Lal Vs. Firm Lakhmi Chand and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in34Ind.Cas.113
AppellantChhotey Lal
RespondentFirm Lakhmi Chand and anr.
Cases ReferredSankarama Aiyer v. Padmanabha Aiyer
Excerpt:
.....causes is to be deemed for all practical purposes to be a court of small causes and section 24 of the code of civil procedure empowers the district court to transfer a case pending in such court to any other court. 450, but in so far as the court held that a suit transferred from the court of a subordinate judge vested with the powers of a small cause court judge to another court was to be deemed to be a suit brought in a court of small causes, the ruling was not disapproved of......act. section 24 of the code of civil procedure provides in subsection 4 that the court trying any suit transferred or withdrawn under the section from a court of small causes shall for the purposes of such suit be deemed to be a court of small causes. if the court from which the suit was transferred to the learned munsif was a court of small causes within the meaning of the section, the court of the munsif was for the purposes of the suit to be deemed to be a court of small causes and its procedure was to be governed by the procedure laid down in the provincial small cause courts act. if that procedure applied to the case before me it was incumbent on the defendant, who applied to have the ex parte decree set aside, to deposit with his application the amount of the decree or to furnish.....
Judgment:

P.C. Banerji, J.

1. This is an application for revision under Section 25 of the Provincial Small Cause Courts Act. The suit out of which it arises was instituted in the Court of the Subordinate Judge of Muttra, who was vested with the powers of a Judge of Court of Small Causes. By an order of the District Judge the case was transferred to the Court of the Munsif of Muttra. The learned Munsif passed an ex parte decree on the 29th of September 1915, the defendant not having entered appearance. The defendant thereupon applied to have the ex parte decree set aside, on the allegation that he had been prevented by illness from attending the Court on the date fixed for hearing. He did not deposit with his application the amount of the decree, nor did he furnish security in respect of that amount as required by Section 17 of the Provincial Small Cause Courts Act. The plaintiff objected to the hearing of the application, on the ground that no deposit had been made or security furnished. The learned Munsif overruled the objection, relying on the recent decision of this Court in Sarju Prasad v. Mahadeo Pande 29 Ind. Cas. 996 : 13 A.L.J. 639 : 37 A. 450.

2. That case clearly had no bearing on the question before me. That was not a case in which a suit had been transferred from a Court vested with the powers of a Small Cause Court to the Court of a Munsif. The real question in this case is whether Section 17 of the Small Cause Courts Act applies to the present case. For the determination of this question it is to be seen whether the learned Munsif who made the decree ex parte was to be deemed to be a Judge of a Court of Small Causes, and his procedure was to be governed by the procedure laid down in the Provincial Small Cause Courts Act. Section 24 of the Code of Civil Procedure provides in subsection 4 that the Court trying any suit transferred or withdrawn under the section from a Court of Small Causes shall for the purposes of such suit be deemed to be a Court of Small Causes. If the Court from which the suit was transferred to the learned Munsif was a Court of Small Causes within the meaning of the section, the Court of the Munsif was for the purposes of the suit to be deemed to be a Court of Small Causes and its procedure was to be governed by the procedure laid down in the Provincial Small Cause Courts Act. If that procedure applied to the case before me it was incumbent on the defendant, who applied to have the ex parte decree set aside, to deposit with his application the amount of the decree or to furnish security in respect of that amount. It was held by this Court in Jagan Nath v. Chet Ram 28 A. 470 : A.W.N. (1906) 93 : 3 A.L.J. 318 that the provisions of Section 17 of the Provincial Small Cause Courts Act are mandatory and that unless the amount of the decree were deposited or security furnished, the application could not be entertained. Therefore, if Section 17 applied to the case the Court below was wrong in entertaining the application, inasmuch as the defendant had not with his application deposited the amount of the decree or furnished security. It has been contended that the Court of Small Causes referred to in Section 24 of the Code of Civil Procedure is a Court of Small Causes established under Act IX of 1887 and that the provisions of that section are not applicable to a Court which was vested with the powers of a Court of Small Causes. This contention is, in my opinion, untenable. Section 33 of the Small Cause Courts Act provides that a Court invested with the jurisdiction of a Court of Small Causes shall, with respect to the exercise of that jurisdiction, be deemed to be a different Court from the same Court with respect to the exercise of its jurisdiction in suits of a nature not cognizable by a Court of Small Causes. This clearly shows that a Court vested with the powers of a Court of Small Causes is to be deemed for all practical purposes to be a Court of Small Causes and Section 24 of the Code of Civil Procedure empowers the District Court to transfer a case pending in such Court to any other Court. When such a transfer has been made, the Court trying the suit is to be deemed to be a Court of Small Causes and all the provisions of the Small Cause Courts Act should regulate the procedure of that Court in respect of the suit so transferred. In Mangal Sen v. Rup Chand 13 A. 324 : A.W.N. (1891) 96 this Court held that a suit transferred from the Court of a Subordinate Judge vested with Small Cause Court powers was to be deemed to be a Small Cause Court suit when tried by a Munsif to whose Court it was transferred, and no appeal lay from the decision of the Munsif. The opinion expressed in that case as to the applicability or otherwise of Section 35 of the Small Cause Courts Act to such a suit was no doubt dissented from in the case of Sarju Prasad v. Mahadeo Pande 29 Ind. Cas. 996 : 13 A.L.J. 639 : 37 A. 450, but in so far as the Court held that a suit transferred from the Court of a Subordinate Judge vested with the powers of a Small Cause Court Judge to another Court was to be deemed to be a suit brought in a Court of Small Causes, the ruling was not disapproved of. A similar view was held by the Madras High Court in the recent case of Sankarama Aiyer v. Padmanabha Aiyer 17 Ind. Cas. 425 : 38 M. 25 : 23 M.L.J. 373 : (1912) M.W.N. 1086. I am of opinion that a Court vested with the powers of a Court of Small Causes is contemplated by Section 24 of the Code of Civil Procedure and that when a suit is transferred from that Court to another Court, the Court trying it is to be deemed to be a Court of Small Causes and its procedure is to be governed by the provisions of the Provincial Small Cause Courts Act. Therefore, when such a suit is transferred to a Munsif and he passes an ex parte decree in the suit, an application to have the exparte decree set aside must be accompanied by a deposit of the amount of the decree or a security in respect of that amount. No deposit having been made or security furnished at the time of the presentation of the application by the defendant in this case, that application ought to have been dismissed and the Court below was wrong in entertaining it. I accordingly allow this application for revision, set aside the order of the Court below and dismiss the application presented in that Court by the defendants on the 11th of October 1915. Having regard to the circumstances I make no order as to costs.


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