Skip to content


G. Abdul Khader Sahib Vs. G. Chinniah Naidu - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1943Mad271; (1943)1MLJ49
AppellantG. Abdul Khader Sahib
RespondentG. Chinniah Naidu
Cases ReferredLtd. v. Manavikraman Thimmalpad
Excerpt:
- .....in the preceding paragraph were based on an interpretation of the general sections of the code of civil procedure relating to transfer for execution; and the learned judges were considering a transfer to an ordinary civil court and had no occasion to consider the special position of courts of small causes. although the code of civil procedure governs procedure in courts of small causes also, there are a few provisions of the code that relate only to such courts. those special provisions must necessarily prevail when we are considering the procedure relating, to such courts. one of the special provisions is order 21, rule 4. that rule enables (he court of small causes to execute decrees of other courts only when two conditions are fulfilled. one is that the decree has been passed in a.....
Judgment:

Horwill, J.

1. The respondent held a decree in this Court for Rs. 5,000 odd against the petitioner; and he was desirous of executing it for about Rs. 600 against the sum of money lying to the credit of the petitioner in the Court of Small Causes, Madras. He got, it attached by this Court, but instead of getting the money transferred to this Court and then proceeding against that money in this Court, he got an ex parte order transferring his decree to the Court of Small Causes and there executed it. The petitioner raised the objection that the Court of Small Causes had no jurisdiction to execute this decree because the value of the suit was for a sum of more than Rs. 2,000. This objection was overruled by the learned Judge of the Court of Small Causes on the ground that the transferee Court acts as the agent of the transferor Court, and he quoted Narasayya v. Venkatakrishnayya I.L.R. (1884) Mad. 397, Shanmuga Pillai v. Ramanathan Chettiar : (1894)4MLJ91 and Malabar Forests and Rubber Co., Ltd. v. Manavikraman Thimmalpad (1933) 66 M.L.J. 418 in support of his conclusion.

2. The cases quoted in the preceding paragraph were based on an interpretation of the general sections of the Code of Civil Procedure relating to transfer for execution; and the learned Judges were considering a transfer to an ordinary Civil Court and had no occasion to consider the special position of Courts of Small Causes. Although the Code of Civil Procedure governs procedure in Courts of Small Causes also, there are a few provisions of the Code that relate only to such Courts. Those special provisions must necessarily prevail when we are considering the procedure relating, to such Courts. One of the special provisions is Order 21, Rule 4. That rule enables (he Court of Small Causes to execute decrees of other Courts only when two conditions are fulfilled. One is that the decree has been passed in a suit in which the value as set forth in the plaint does not exceed Rs. 2,000, and the other is that the suit as regards its subject-matter is not excepted by the law for the time being in force from the cognizance of either a Presidency or a Provincial Court of Small Causes. It follows therefore that the Presidency Court of Small Causes, Madras, had no jurisdiction to execute this decree and therefore acted without jurisdiction in doing so.

3. Another argument that the respondent might have put forward in support of the lower Court's order was that Order 19, Rule 30 of the Original Side Rules lays down the method of execution in such cases and says that,

Where the property sought to be attached is -in the custody of another Court, the execution implication shall ask that, after attachment, the decree may be transmitted to that Court for execution; and if the attachment is made...the Registrar shall transmit the decree accordingly.

That at first sight would seem to be inconsistent with Order 21, Rule 4 of the Code of Civil Procedure. The rules in Schedule I of the Code of Civil Procedure apply in general to High Courts unless the rules specially framed for the High Court or any other provisions of the Code of Civil Procedure make those rules of the Code of Civil Procedure inapplicable to High Courts; for Order 1, Rule 3 of the Original Side * Rules repeals only such provisions of the Code of Civil Procedure as might be inconsistent with the Original Side Rules. So the question is whether Order 21, Rule 4 of the Code of Civil Procedure can be said to be inconsistent with Order 19, Rule 30 of the Original Side Rules. Order 19, Rule 30 purports to apply to all execution applications; but it seems incredible that the Original Side Rules were intended to abrogate the provisions of Order 21, Rule 4, Civil Procedure Code, because Order 21, Rule 4 seems to embody the important principle that Small Cause Courts should execute decrees only of such suits that the Small Cause. Court could have itself entertained. I find it difficult to believe that Order 19, Rule 30 of the ' Original Side Rules was intended to overrule such an important provision as Order 21, Rule 4 of the Code of Civil Procedure. I feel sure that such a marked deviation from the Code of Civil Procedure would have been positively expressed and not left to be deduced by inference.

4. The petition is allowed and the orders of the lower Court and of the first Assistant Registrar set aside. The petitioner will be given his costs in this Court. In the lower Court each party will bear his own costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //