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Sankara Konar and ors. Vs. Sivaraman and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberCivil Revn. Petn. No. 309 of 1961
Judge
Reported inAIR1964Ker37
ActsKerala Civil Courts Act, 1957 - Sections 13(2); Kerala Civil Courts (Amendment) 1959 - Code of Civil Procedure (CPC) , 1908 - Sections 106 - Order 21, Rule 90
AppellantSankara Konar and ors.
RespondentSivaraman and anr.
Appellant Advocate S. Easwara Iyer, Adv.
Respondent Advocate T.S. Krishnamoorthy Iyer and; G. Rajasekhara Menon and;
DispositionRevision petition dismissed
Cases ReferredMoideen Sahib v. Union of India
Excerpt:
.....- matter remanded back to district court and subsequently application preferred by petitioner transferred to subordinate judge who allowed application - appeal preferred by respondent (decree-holder) to district court who found that sale not liable to set aside - petitioner urged that district court was not competent to hear appeal as district court had passed decree in suit - in view of amendment act of 1959 appeal rightly filed in district court - not possible to say that there was sale for low price as result of under-valuation - held, objections raised by petitioners not sustainable. - - reliance was placed on section 106, code of civil procedure, as well as the decision of this court in ramunni kurup v. 7. it follows that the civil revision petition must fail......the amendment, the position is that appeals would lie to the district court from all decrees and orders passed after the amendment, in the exercise of the original jurisdiction by a subordinate judge, provided the value of the suit does not exceed rs. 10,000. 1959 ker lr 1289 relied on by the revision petitioners was a case in which an appeal was filed from an order in execution of a decree in a suit instituted and decreed before theamending act. it was held that the appeal would lie only to the high court as the amendment made it clear that it applied only to decrees and orders passed after the date of the amendment, and as section 106, code of civil procedure, was not modified by the amending act. it appears that the appeal was from an order under section 47, code of civil procedure.....
Judgment:
ORDER

1.The order of the Court was delivered by the Acting Chief Justice. When this civil revision petition was heard by one of us, it was referred to a Division Bench as it involved a question of interpretation of Section 106, Code of Civil Procedure, and Section 13 of the Kerala Civil Courts Act.

2 The facts necessary for the decision of the petition may be stated: in execution of the decree in O. S. No. 163 of 1120 of the District Court of Trivandrum, the property of the judgment-debtor was sold for Rs. 12,000 on 24th Karkatakom 1121. The judgment-debtor applied for setting aside the sale under Order XXI, Rule 87, Code of Civil Procedure (Travancore) corresponding to Order XXI, Rule 90 of the Indian Code. The application was dismissed by the execution Court, but on appeal, the order was set aside by the High Court and the matter was remanded for fresh disposal. After remand, the District Court passed an order allowing the application. This was set aside by the High Court on the ground that the second plaintiff's legal representatives were not impleaded. The application was again remanded to the District Court. The application was thereafter transferred by the District Judge to the Subordinate Judge of Trivandrum who allowed the application. An appeal was preferred by the decree-holders to the District Court. A preliminary objection was raised before the Additional District Judge, who heard the case, that he had no jurisdiction to hear it and that an appeal would He only to the High Court, as the decree in the suit was one passed by the District Court. This was overruled, and on the merits it was held that the sale was not liable to be set aside. The legal representatives of the second defendant have therefore preferred this civil revision petition.

3. On behalf of the revision petitioners, it was urged that the Additional District Judge was incompetent to entertain the appeal as the decree in the suit was one passed by the District Court. Reliance was placed on Section 106, Code of Civil Procedure, as well as the decision of this Court in Ramunni Kurup v. M. Chiru-tha, 1959 Ker LR 1289.

4. Section 106, Code of Civil Procedure, reads as follows : -

'Where an appeal from any order is allowed it shall lie to the Court to which an appeal would lie from the decree in the suit in which such order was made, or where such order is made by a Court (not being a High Court) in the exercise of appellate jurisdiction, then to the High Court.'

Section 13 of the Kerala Civil Courts Act (I of 1957) was in these terms :

'Appeal from the decrees and orders of a Munsiff's Court and where the amount or value of the subject-matter of the suit does not exceed seven thousand and five hundred rupees, from the original decrees and orders of a Subordinate Judge's Court shall, when such appeals are allowed by law, lie to the District Court:

Provided that whenever a Subordinate Judge's Court is established in any district at a place other than the place where the District Court is stationed, the High Court may, with the approval of the Government, direct that appeals from the decrees or orders of Munsiff's Courts within the local limits of the Jurisdiction of such Subordinate Judge's Court be preferred in such Subordinate Judge's Court:

Provided further that the District Court may remove to itself from time to time appeals so preferred and dispose of them itself or may, subject to the orders of the High Court, refer any appeals from the decrees and orders of Munsiff's Courts preferred in the District Court to any Subordinate Judge's Court within the District'.

Section 13 was amended by Section 4 of the Kerala Civil Courts (Amendment) Act (Act 12 of 1959) as a result of which Section 13 was renumbered as Sub-section (1) of Section 13 and the words 'seven thousand and five hundred rupees' in Sub-section (1) were substituted by the words 'ten (thousand rupees'. Sub-section (2) extracted below was also added :

'The provisions of Sub-section (1) shall apply to original decrees and orders of a Subordinate Judge's Court passed after the commencement of the Kerala Civil Courts (Amendment) Act, 1959, notwithstanding the fact that the suit in respect of which such decrees and orders have been passed were instituted before such commencement.'

This amendment was necessitated by the decision of this Court in Chinna Kunju Kunju v. Neelalcantan, ILR (1957) Kerala 1004 : (AIR 1958 Kerala 251) in which it was held that the substantive right to prefer an appeal arose when the suit was instituted and not when the decision sought was rendered. As a result of the amendment, the position is that appeals would lie to the District Court from all decrees and orders passed after the amendment, in the exercise of the original jurisdiction by a Subordinate Judge, provided the value of the suit does not exceed Rs. 10,000. 1959 Ker LR 1289 relied on by the revision petitioners was a case in which an appeal was filed from an order in execution of a decree in a suit instituted and decreed before theamending Act. It was held that the appeal would lie only to the High Court as the amendment made it clear that it applied only to decrees and orders passed after the date of the amendment, and as Section 106, Code of Civil Procedure, was not modified by the amending Act. It appears that the appeal was from an order under Section 47, Code of Civil Procedure which fall within the definition of a decree. Appeals from original decrees are governed by Section 96 of the Code of Civil Procedure, which provides :

'Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decision of such Court.' Section 106 Civil Procedure Code, applies only to appeals from the orders made appealable by the Code of Civil Procedure. This difference-does not appear to have been noticed in the decision reported in 1959 Ker LR 1289. The order of the Subordinate Judge in this case was on 6th July, 1959, i. e., after the date of the amending Act.

5. We may in this connection refer to a decision of Madhavan Nair, J., in Moideen Sahib v. Union of India, ILR 1960 Kerala 1381. That was a case in which the suit was originally instituted in the District Court but was transferred to the Munsiffs' Court when the Munsiffs became competent to try such suits. The decree in the suit was passed by the Muosiff and an appeal was preferred in the District Court which returned the same for presentation to this Court. The question as to whether the District Court or the High Court should entertain the appeal carne up for decision, and Madhavan Nair, J., held that the forum for appeal was to be decided with reference to the Court which decided the suit or proceeding, notwithstanding the fact that the suit or proceeding was originally instituted in a Court of higher jurisdiction. The word 'instituted' in Section 13 (2) of the Kerala Civil Courts Act was held to mean either instituted originally or by transfer. The incongruity of holding otherwise has also been pointed out in the decision. We are in complete agreement with this view: The word 'original' which qualifies 'decrees and orders' in Section 13 (2) means decrees and orders passed in the exercise of original jurisdiction as distinguished from those passed in appeal. The order by the Subordinate Judge in this case falls under the former category and as a result of the amending Act, 12 of 1959, the appeal was rightly filed in the District Court. The objection raised by the petitioners is therefore not sustainable.

6.Coming to the merits, the view taken by the Additional District Judge is correct. The Commissioner who was deputed to value the property sold reported that the decree-holder had produced before him a sale deed, dated. 8th Makaram 1123 for 101 cents in survey No. 2166. The property sold in this case is another part of the same survey number. Again, the judgment debtor purchased the property sold, in 1118, forRs. 13,887-14-0. There is no evidence that the price had appreciated between the years 1118 and 1121. The mode of valuation by belts adopted by the Commissioner has not been approved of by the learned Additional District Judge. We concur with, the view that such a mode of valuation is not justified in this case. Capitalising the rental value of the buildings at 16 2/3 years' purchase is not justified in this case, in view of the fact that the buildings were built of flimsy materials and are fairly old. It canaot be said that a private sale of the property in 1121 would have yielded more than what was realised by the Court sale. The property was valued by the decree-holder at Rs. 10,000. On the evidence it is mot possible to say that there was either undervaluation or sale for a low price as a result of under-valuation. We confirm the finding of the Additional District Judge on this point.

7. It follows that the civil revision petition must fail. We accordingly dismiss the same, but in the circumstances, without costs.


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