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Kothandarama Chettiar and anr. Vs. Annamalai Pillai and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1925Mad589; 87Ind.Cas.399; (1925)48MLJ406
AppellantKothandarama Chettiar and anr.
RespondentAnnamalai Pillai and anr.
Cases ReferredMarthamma v. Kutti Sheregara
Excerpt:
- .....courts exercising small cause jurisdiction. the present code is made applicable to all courts of civil jurisdiction except such portions of the code as are specifically stated to be not applicable to any court or to the jurisdiction of any court.4. where the terms of an enactment are quite clear, it is unnecessary to enquire into the reasons for the change. it cannot be suggested that the legislature overlooked the provisions of the previous code as to the jurisdiction of the court of small causes or courts exercising small cause jurisdiction as regards the attachment before judgment of immoveable property, when it enacted the present code.5. in the present civil procedure code, the provision in schedule ii of the previous code as regards the attachment before judgment of immoveable.....
Judgment:

Devadoss, J.

1. The question referred for the opinion of the High Court by the District Munsif of Ariyalur is whether a Court exercising the jurisdiction of a Small Cause Court has power to attach immoveable property before judgment under Order 38, Rule 5 of the Civil Procedure Code.

2. The Civil Procedure Code of 1908 is made applicable to all Courts of Civil Judicature unless the whole or portions of it are declared not applicable to any Court or the jurisdiction of any Court. Section 7 enacts that certain provisions of the Civil Procedure Code shall not extend to Courts constituted under the Small Cause Courts Act, 1887, or to Courts exercising jurisdiction of the Court of Small Causes under that Act. Under Order 50 it is provided that certain provisions of the Civil Procedure Code shall not extend to Courts constituted under the Provincial Small Cause Courts Act, or to Courts exercising jurisdiction of the Court of Small Causes under that Act. Order 38 is not one of the orders mentioned in Order 50. Order 38 of the Civil Procedure Code is, therefore, applicable to the Court of Small Causes or Court exercising small cause jurisdiction. Under Order 38, a Court is empowered to attach before judgment moveable and immoveable property. It has also power to arrest the defendant before judgment, if proper cause is shown. So far as this Presidency is concerned, the jurisdiction of a Small Cause Court or a Court exercising small cause jurisdiction to attach before judgment moveable property and to arrest before judgment the defendant for proper cause shown, has never been questioned.

3. The question is whether under the present Code, the Court of Small Causes or a Court exercising small cause jurisdiction has power to attach before judgment immoveable property. According to the present Civil Procedure Code, Order 38 is applicable to all Courts, unless the jurisdiction under Order 38 has been specifically taken away by the Civil Procedure Code or any other enactment. There is nothing in the Civil Procedure Code of 1908 to show that Order 38, Rule 5 is not applicable to a Court of Small Causes or Court exercising small cause jurisdiction. Under the Civil Procedure Code, 1882, the Small Cause Court was not given jurisdiction to attach immoveable property before judgment. Schedule II of that Code specifically took away the jurisdiction of the Court of Small Causes to attach immoveable property before judgment. It made Chapter XXXIV corresponding to Order 38 applicable to the Court of Small Causes with the reservation that it was not to apply to the attachment of immoveable property. Under Section 5 of the Code of 1882, only certain specified portions were made applicable to Courts of Small Causes constituted under Act XI of 1865 and to all other Courts except the Presidency Towns Small Cause Courts exercising the jurisdiction of a Court of Small Causes. There seems to be a distinct departure in the present Civil Procedure Code from the policy of the Code of 1882. Under the Code only certain specified portions of the Civil Procedure Code were made applicable to Small Cause Courts and Courts exercising small cause jurisdiction. The present Code is made applicable to all Courts of civil jurisdiction except such portions of the Code as are specifically stated to be not applicable to any Court or to the jurisdiction of any Court.

4. Where the terms of an enactment are quite clear, it is unnecessary to enquire into the reasons for the change. It cannot be suggested that the Legislature overlooked the provisions of the previous Code as to the jurisdiction of the Court of Small Causes or Courts exercising small cause jurisdiction as regards the attachment before judgment of immoveable property, when it enacted the present Code.

5. In the present Civil Procedure Code, the provision in Schedule II of the previous Code as regards the attachment before judgment of immoveable property by Courts of Small Causes is deliberately omitted. When the terms of an enactment are quite clear, it is not proper for the Courts to consider what the previous law on the subject was in order to interpret the existing law. Where it is doubtful as to what the Legislature meant by a certain provision of a new enactment, the Court could refer to the previous state of the law in order to interpret what is not clear. But where the law is clear, it is not proper for *the Court to consider whether there has been a change in the policy of the law or whether there the Legislature overlooked the previous law on the subject [vide Bank of England v. Vagliano (1891) AC 107].

6. This point has been decided quite recently by the Calcutta High Court on a reference similar to the present one. In Kedarnath Panamanik v. Hem Nath Karamkar ILR (1922) C 994, a Bench of the Calcutta High Court held that the Provincial Small Cause Court had power to attach immoveable property before judgment. The learned Judges referred to a previous case decided by them as regards the power of the Small Cause Court to attach moveable property before judgment. In Kumud Behary Pal v. Hari Charan Sardar ILR (1918) C 717 the same learned Judges held that the Court of Small Causes had power to attach moveable property before judgment. In that case, the District Munsif who referred the question was of opinion that a Small Cause Court had no power to pass interlocutory orders under Section 94 of the Civil Procedure Code and that an attachment before judgment was an interlocutory order and therefore such an order could not be passed by the Court of Small Causes., Section 7 (b) does not extend Sections 94 and 95 so far as they relate to injunctions and interlocutory orders. If the intention of the Legislature was not to extend Sections 94 and 95, it could have said so. But only certain orders under Sections 94 and 95, i. e., orders coming under Section 94 (c) and (d) are exempted from the jurisdiction of the Small Cause Court or Court exercising small cause jurisdiction. That is no reason for saying that the powers given by Section 94 (a), (b) or (d) could not be exercised by a Court of Small Causes. So far as our Presidency is concerned, as I have already observed, the jurisdiction of the Small Cause Court to attach moveable property before judgment and to arrest the defendants before judgment for proper cause shown, was never questioned.

7. In the case of Ibrahim Rowthan v. Sangaram Shetty (1902) ILR 26 M 504 the power of the Small Cause Court to award compensation under Section 491 of the old Code corresponding to Section 95 of the present Code was recognised. The Calcutta High Court in this respect has come into line with the Madras High Court.

8. The District Munsif refers to an old case in Marthamma v. Kittu Sheregara (1871) 6 MHCR 91 in which it was held on a reference by the Principal Sadr Amin of Mangalore that a Small Cause Court had no jurisdiction to attach immoveable property before judgment. The reason given by the learned Judges is that 'the Court which cannot attach primarily in execution of its decree cannot attach in anticipation of it.'

9. With due respect to the learned Judges, it is not easy to follow the reasoning. The attachment before judgment is only a preventive remedy so as to enable the plaintiff to reap the fruits of his decree if he is able to obtain one, by preventing the defendants from making away with the property and thereby rendering the decree nugatory. It does not follow that a Court which has the power to attach immoveable property before judgment should necessarily have the power to execute the decree against immoveable property; for the attachment before judgment is not in execution of its decree, but for preventing the defendants from making away with the property before the Court passes its decree. If the suit is dismissed the attachment will ipso facto cease. The decision in Marthamma v. Kittu Sheregara (1871) 6 MHCR 91 cannot be said to be wrong in the state of the law as it then was. Under Section 5 of Act X of 1877 certain chapters and sections of the Code specified in the Second Schedule thereto annexed were extended to Courts of Small Causes constituted under Act XI of 1865. It was specially enacted in that section that 'Nothing herein contained shall be deemed to enlarge the powers which such Courts now possess for the purpose of effecting attachments or executing decrees. 'By Section 5, the Small Cause Court was not given additional or enlarged powers by reason of the Code of 1877, i. e., the powers which such Court had not before the Act of 1877 was passed. By the Amending Act XII of 1879, the third sentence of Section 7 was repealed. The Second Schedule was amended by the insertion of the words 'except as regards immoveable property.' This amendment was embodied in the Act of 1872 which put the matter beyond doubt. In 1871 when the decision in Marthamma v. Kittu Sheregara (1871) 6 MHCR 91 was passed, the Court of Small Causes had no power to execute its decree against immoveable property. By Act. XI of 1865,S. 20, it was provided that for the purpose of executing a small cause decree an application had to be made to the Court exercising general jurisdiction in which the immoveable property was situate. There is nothing in Act XI of 1865 to show that a Small Cause Court could attach before judgment immoveable property. Under Act VIII of 1859 a Civil Court had jurisdiction to attach before judgment both immoveable and moveable property (vide Section 83). Section 388 of that Code extended the Act to all Civil Courts but there is nothing in the Act itself to show that the Act was extended to Small Cause Courts or Courts exercising small cause jurisdiction. Under the Small Cause Courts Act of 1865, therefore, the Small Cause Court had no jurisdiction to attach immoveable property. The decision in Marthamma v. Kutti Sheregara (1871) 6 MHCR 91 is, therefore, correct with regard to the law as it then stood.

10. But as the law stands at present, it cannot be said that the Small Cause Court has no jurisdiction to attach before judgment immoveable property. As we have already observed, the present Code is quite clear on the point and therefore the decision in Marthamma v. Kutti Sheregara (1871) 6 MHCR 91 cannot apply to the present state of the law.

11. We, therefore, answer the question referred to us in the affirmative.

12. We are very much indebted to the learned Government Pleader for assisting us by arguing the point fully as amicus curiae.


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