1. This is an appeal from the decision of the learned Additional Judge of the City Civil Court in O.S. No. 997 of 1936. The suit was filed by Angammal (the first respondent) to set aside an order made on a claim petition in execution. The plaintiff Angammal was the assignee of a decree in Small Cause Suit No. 8589 of 1925 in which one Venkatachala Naicker was the judgment-debtor. The plaintiff as the assignee decree-holder attached the superstructure, No. 31, Kalmandapam Road, Rayapuram, Madras, as the property of Venkatachala Naicker. Sadayammal, the first defendant in the suit preferred a claim, petition alleging that on the 25th September, 1925, Venkatachala Naicker had sold the superstructure to Vembuli Naicker and that subsequently Vembuli Naicker had died leaving the property to his son who on the 14th December, 1934, sold it to the first defendant, the first defendant being the wife of the original owner, while Vembuli Naicker, the vendee from Venkatachala Naicker is the son of the first defendant's brother. The claim of Sadayammal was allowed and this suit was filed in the City Civil Court to set aside the order on the claim petition. The learned Additional Judge of the City Civil Court gave the plaintiff a decree and this appeal has been preferred by the first defendant.
2. The learned Advocate for the appellant has argued only the question of jurisdiction. It was contended in the Court below that the City Civil Court had no jurisdiction in this case. The learned Judge of the City Civil Court overruled this contention on the ground that the Presidency Small Cause Court is precluded from entertaining any suit the subject-matter of which is an interest in immovable property. The learned Judge recognised that Section 28 of the Presidency Small Cause Courts Act excepts the case of property attached to immovable property which the tenant of the immovable property is at liberty to remove without the permission of the landlord before the termination of his tenancy. But the learned Judge thought that this exception was not wide enough to include a suit to set aside a claim order. We think that this decision is incorrect. Section 28 is quite general. It provides that:
When the judgment-debtor under any decree of the Small Cause Court is a tenant of immovable property, anything attached to such property, and which he might before the termination of his tenancy lawfully remove without the permission of his landlord, shall, for the purpose of the execution of such decree and for the purpose of deciding all questions arising in the execution of such decree, be deemed to be movable property...
3. It is not disputed that the superstructure in question is a superstructure which the tenant, namely, the appellant would be entitled before the termination of her tenancy of the land to remove without the permission of the landlord. It is in fact only on that ground that the decree-holder in the small cause suit was entitled to attach the superstructure as the property of Venkatachala Naicker. Since the superstructure must be deemed to be movable for the purpose of deciding all questions arising in the execution of the decree the learned Advocate for the appellant is, we think, on good ground when he maintains that the suit ought to have been filed in the Small Cause Court. The Full Bench decision in Rajammal v. Narayanasami Naicker : AIR1915Mad1164(2) is clear that a suit by an unsuccessful party in claim proceedings to recover movable property attached by the Presidency Small Cause Court is not excluded from the jurisdiction of the Presidency Small Cause Court under Section 19, Clause (s) of the Act. The City Civil Court can only entertain suits which are not cognisable by the Small Cause Court (vide Section 3 of the Madras City Civil Courts Act). We think therefore that the learned Advocate for the appellant is right when he contends that the City Civil Court had no jurisdiction in this case. The learned Advocate for the first respondent-plaintiff points out that by Section 5 of the City Civil Courts Act every person appointed a Judge of the City Court shall be, by virtue of his office, a Judge of the Small Cause Court with respect to cases cognisable by that Court, and he invites us to say that therefore the Additional Judge of the City Civil Court had jurisdiction to try the suit. This, however, we think, is unsound. Section 5 does not enable the City Civil Court to entertain suits which are cognisable by the Small Cause Court. This Section 5 is only intended to give authority to the Judges of the City Civil Court to try small cause suits when they are transferred, when the Chief Justice of this High Court directs the Judge of the City Civil Court to try cases of a small cause nature. As has been pointed out by Sir Murray Coutts-Trotter, C.J., in Manicka Chettiar v. Kuppuswami Naicker (1926) 258 L.W. 115:
The object of Section 5 of the City Civil Courts Act is to enable the Chief Justice to prescribe generally the duties to be performed by a Judge of the City Civil Court when transferred to the Small Cause Court for any substantial period and not to enable the Chief Justice to interfere with regard to the transfer of particular cases and create a City Civil Court Judge a Small Cause Court Judge ad hoc with reference to an individual case.
4. The learned Advocate for the first respondent-plaintiff has attempted to distinguish between questions arising 'in' the execution of a small cause decree and questions arising 'out of the execution of such a decree. He agrees that for the decision of any question arising 'in' the execution of the decree in Small Cause Suit No. 8589 of 1925, the superstructure would have to be deemed to be movable property by reason of Section 28 of the Presidency Small Cause Courts Act, but he contends that this suit has really arisen 'out of execution proceedings and therefore Section 28 will not be applicable. We do not think that this distinction is one of substance. We are unable ourselves to distinguish between questions arising 'in'' execution and questions arising 'out of execution.
5. The point in dispute between the appellant and the first respondent undoubtedly arose in execution of the small cause decree. It was because of that question that the claim petition was filed and under the rules the order passed on the claim petition is conclusive, subject to the result of any suit which may be filed by the defeated claimant.
6. Agreeing with the learned Advocate for the appellant, we hold that the City Civil Court had ho jurisdiction to try this suit. We therefore set aside the decree of the learned Additional Judge and direct him to return the plaint to the plaintiff for presentation if so advised to a competent Court. The appellant will recover her costs of this appeal from the first respondent. We make no order with regard to the costs of the trial Court.