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Acham Vittil Kelu Menon Vs. Panikot Karathodiyil Vikirsha Menon and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1896)6MLJ617
AppellantAcham Vittil Kelu Menon
RespondentPanikot Karathodiyil Vikirsha Menon and anr.
Cases ReferredNarasayya v. Venhatakrishnayya I.L.R.
Excerpt:
- - but the division bench of the high court at calcutta considered that there was no intention to create an exceptional jurisdiction in district munsifs to execute decrees for more than the value of their pecuniary jurisdiction, and that section 223 ought to be read as if section 6 was incorporated with it......and ordered the rateable distribution. to this order objections are taken. it is urged that the district munsif is not at liberty to transmit his decree to a subordinate judge for execution otherwise than through the district court. in the case before us, both courts are in the same district, and the last paragraph of section 223 is conclusive on the point. another contention is that a decree passed by a district munsif in the exercise of ordinary jurisdiction is not capable of being executed by a subordinate judge executing a decree passed by him in the execution of his small cause jurisdiction. if both decrees were passed by the same court, one on its regular and the other on its small cause side, there is no warrant in the language of section 295 for the contention that they cannot.....
Judgment:

1. The 2nd respondent obtained a money-decree against the 1st respondent in O.S. 310 of 1888, on the file of the Shernad Munsif. Appellant also obtained a decree against the 1st respondent on the small cause side of the subordinate court at Calicut in Small Cause suit No. 154 of 1889.In its execution, appellant attached the judgment-debtor's interest in certain Kurt or benefit fund, brought it to sale and realised Rs. 488. Meanwhile 2nd respondent had his decree transferred to the subordinate judge for execution and then applied for rateable distribution under Section 295 of the Code of Civil Procedure. Appellant objected to the proceeding on 3 grounds, (1) that the decree in 2nd respondent's favour was collusive, (2) that it was not transmitted to the subordinate judge for execution through the District Court and (3) that the decree being one passed in a regular suit was not capable of being executed on the small cause side of the subordinate court. The subordinate judge disallowed these objections and ordered the rateable distribution. To this order objections are taken. It is urged that the District Munsif is not at liberty to transmit his decree to a subordinate judge for execution otherwise than through the District Court. In the case before us, both courts are in the same District, and the last paragraph of Section 223 is conclusive on the point. Another contention is that a decree passed by a District Munsif in the exercise of ordinary jurisdiction is not capable of being executed by a subordinate judge executing a decree passed by him in the execution of his small cause jurisdiction. If both decrees were passed by the same court, one on its regular and the other on its small cause side, there is no warrant in the language of Section 295 for the contention that they cannot be admitted to rateable distribution. The intention is to recognize the equal rights of holders of decree to share in the sale proceeds realized by any of them in execution provided that the others have prior to the realization applied to the court for execution. There is no apparent reason why a distinction should be made between one who holds a small cause decree and one who obtains a decree on the regular side. In this connection our attention is drawn to the decision reported in Gokul Kristo Chunder v. Aukhil Chunder I.L.R. (1889) C. 457 and Durga Charan Mojumdar v. Umatara Gupta I.L.R. (1889) C. 457 where in the decision reported in Narasayya v. Venhatakrishnayya I.L.R. (1881) M. 397 was dissented from. In the lastmentioned decision a Division Bench of this Court held that Chapter XIX created an extraordinary jurisdiction in cases mentioned in the last para of Section 223, and that a District Munsif was at liberty to execute, and that a District Judge was competent to transfer to him for execution a decree for a sum in excess of the pecuniary limit of the ordinary jurisdiction of the former. But the Division Bench of the High Court at Calcutta considered that there was no intention to create an exceptional jurisdiction in District Munsifs to execute decrees for more than the value of their pecuniary jurisdiction, and that Section 223 ought to be read as if Section 6 was incorporated with it. It is not necessary to determine for the purposes of this case whether the District Munsif has jurisdiction to execute a decree of the Subordinates District Court for more than Rs. 2,500, but it is sufficient to observe that the subordinate judge had inherent jurisdiction to execute the decree for money passed by the District Munsif of Shernad. We dismiss with costs the appeal. The Civil Eevision Petition is also dismissed.


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