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Elumalai Vs. Sri Kandaswami Devasthanam Tiruporur - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 1488 of 1960
Judge
Reported inAIR1961Mad408; (1961)1MLJ136
ActsPresidency Small Cause Courts Act, 1882 - Sections 43 and 48; Code of Civil Procedure (CPC) , 1908 - Order 21
AppellantElumalai
RespondentSri Kandaswami Devasthanam Tiruporur
Appellant AdvocateN.C. Subramanian and ;G. Ramanujam, Advs.
Respondent AdvocateT.A. Subramania Pilley, ;S. Chockalingam and ;R.N. Kothiandaraman, Advs.
DispositionPetition dismissed
Cases ReferredPort of Calcutta v. Anil Krishna
Excerpt:
.....that as the provisions of the civil procedure code (act v of 1908) applied to the decrees in ejectment passed under section 43 of act xv of 1882, it would be competent for a decree-holder to apply for execution as in the case of any other decree, within the period of limitation. - - .....the time fixed by the order for ejectment. in my opinion as the provisions of the civil procedure code apply to the decrees in ejectment passed under section 43 of the presidency small cause courts act, it would be competent for the decree-holder to apply for execution as in the case of any other decree within the period of limitation prescribed by law. there are therefore no merits in this petition.4. the petition is dismissed with costs. petition dismissed.
Judgment:
1. The respondent obtained an order for ejectment against the petitioner On 5-12-1957 under the provisions of Sections 41 and 43 of the Presidency Small Causes Courts Act. By that order the petitioner was directed to deliver possession of the property on 30-6-1957. Later, however, the order was varied presumably by consent of parties by which the time for delivery of possession was fixed as 17-2-1958. In the meanwhile the petitioner filed O. S. No. 614 of 1958 against the respondent for a declaration that the order of ejectment would not be binding on him: There was an injunction against the respondent executing the order of ejectment pending the suit. That suit was dismissed on 13-2-1960.

2. Thereupon the respondent applied to the lower court for execution of the order directing delivery of possession. During the course of execution obstruction was offered by nine persons along with the petitioner. The lower Court with out notice to the petitioner directed the removal of the obstruction. The petitioner seeks to revise that order.

3. It is contended on his behalf that the Court of Small Causes had no jurisdiction to extend the time fixed for delivery of possession, and that therefore any order in execution that might he passed so as to enable the respondent to obtain delivery of possession after 17-2-1958 would be invalid. In support of the contention reference is made to the decisions in Jamshedji Hormasji v. Gordhandas Gokuldas, ILR 45 Bom 1048 : (AIR 1921 Bom 201) and Commissioner for Port of Calcutta v. Anil Krishna, 55 Cal WN 305.

In those decisions it was held that it was not competent for the Presidency Court of Small Causes to amend or alter the terms of a decree or order for possession, once passed under Section 45 of the Presidency Small Cause Courts Act, 1882. I cannot see how those cases can apply to the present case. No question of amendment of the original order at all arises in this case. What the respondent applied for is the execution of the decree in the ejection suit No. 56 of 1955. Under the provisions of Section 48 of the Presidency Small Cause Courts Act, all the provisions of the Civil Procedure Code including those contained in Order XXI will apply to matters provided for in that chapter.

It would follow that the respondent would be entitled to execute the order which directed delivery of possession. I do not read the decisions aforesaid as establishing that a court would have no power to execute the decree for ejectment beyond the time fixed by the order for ejectment. In my opinion as the provisions of the Civil Procedure Code apply to the decrees in ejectment passed under Section 43 of the Presidency Small Cause Courts Act, it would be competent for the decree-holder to apply for execution as in the case of any other decree within the period of limitation prescribed by law. There are therefore no merits in this petition.

4. The petition is dismissed with costs. Petition dismissed.


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