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Vaikunta Prabhu and anr. Vs. MoidIn Saheb and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in(1892)ILR15Mad89
AppellantVaikunta Prabhu and anr.
RespondentMoidIn Saheb and ors.
Cases ReferredSitharama v. Vythilinga I.L.R.
Excerpt:
civil procedure code - act xiv of 1882, section 588, clause 17--provincial small cause courts act--act ix of 1887, section 24--insolvency petition in execution of decree in small cause suit--appeal. - .....been dismissed on the ground that no appeal lies; hence this revision petition under section 622, civil procedure code.2. the ground on which the district judge has dismissed the appeal is that it is one from an insolvency order passed by the district munsif in the exercise of his small cause jurisdiction, and that under section 24 of act ix of 1887, an appeal is only given from one of the orders specified in section 588, civil procedure code (clause 29), chapter xliii of the civil procedure code (in which sections 588 and 589 occur), is not included in the chapter of the procedure code extended to provincial courts of small causes by schedule ii, civil procedure code.3. on appeal it is argued that the order passed by the district munsif was not passed in the exercise of his small cause.....
Judgment:

Parker, J.

1. In the execution of Small Cause Suit No. 417 of 1885 on the Mangalore District Munsif's file, the defendants applied to be declared insolvents. This application was filed as Insolvency Suit No. 7 of 1888, and was dismissed by the District Munsif. Their appeal to the District Court has been dismissed on the ground that no appeal lies; hence this revision petition under Section 622, Civil Procedure Code.

2. The ground on which the District Judge has dismissed the appeal is that it is one from an insolvency order passed by the District Munsif in the exercise of his small cause jurisdiction, and that under Section 24 of Act IX of 1887, an appeal is only given from one of the orders specified in Section 588, Civil Procedure Code (Clause 29), chapter XLIII of the Civil Procedure Code (in which Sections 588 and 589 occur), is not included in the chapter of the Procedure Code extended to Provincial Courts of Small Causes by schedule II, Civil Procedure Code.

3. On appeal it is argued that the order passed by the District Munsif was not passed in the exercise of his small cause jurisdiction, but in the exercise of a special jurisdiction conferred upon him by the Local Government under Section 360, Civil Procedure Code, by which he has been invested with the powers conferred on District Courts in insolvency matters (vide G.O. of' 14th December 1886, No. 480, Fort St. George Gazette, 14th December 1886, page 1093). It is pointed out that the special jurisdiction and powers given by Sections 354 to 359 are far more extensive than the powers ordinarily vested in a Small Cause Judge, and hence it is argued that from the exercise of this special jurisdiction as an Insolvent Court an appeal will lie under Section 588, Clause 17, Civil Procedure Code, and that under Section 589 as amended by Section 3 of Act X of 1888, the appeal will lie to the District Court.

4. I am of opinion that this view is sound and must prevail. It appears also in consonance with the view taken by this Court in Sitharama v. Vythilinga I.L.R. 12 Mad. 472.

5. I set aside the order of the District Judge and remand the appeal for investigation. The petitioner is entitled to his costs in this Court, and the costs in the District Court will abide and follow the result.


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