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Rao Sahib Srinivasa Mudaliar Vs. Ramudu Naidu and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtChennai
Decided On
Reported inAIR1943Mad262; (1943)1MLJ57
AppellantRao Sahib Srinivasa Mudaliar
RespondentRamudu Naidu and anr.
Cases ReferredChella Narasiah v. Sontan Obbayya
Excerpt:
- - this contention in my opinion is quite untenable in view of the provisions of section 7 and of order 21, rule 82 of the code of civil procedure as well as of section 34 of the provincial small cause courts act itself......was made for execution by the arrest of the judgment-debtor. the judgment-debtor in the two suits, small cause suit no. 2 of 1940 and small cause suit no. 79 of 1940 was the same. on 19th november, 1940, the petitioner applied to the subordinate judge for rateable distribution in respect of the assets realised in execution of the decree in small cause suit no. 79 of 1940. the learned subordinate judge dismissed this application by a short order in which he observed:there has been no transfer of the decree to this court by the decreeing court, namely, this court on its small cause side. the petition is therefore not maintainable and is dismissed.under section 73 of the code of civil procedure in order that a decree-holder may be entitled to rateable distribution an application has.....
Judgment:

Happell, J.

1. The petitioner was the decree-holder in Small Cause Suit No. 2 of 1940 in the Vellore Sub-Court and the first respondent was the decree holder in Small Cause Suit No. 79 of 1940 in the same Court. The respondent had his decree transferred for execution to the original side of the Subordinate Judge's Court as execution involved the sale of immovable property. The property was sold, and the assets were received on the 7th of November, 1940 and the 21st of November, 1940. The petitioner meanwhile had his decree transferred for execution to the District Munsiff's Court, Vellore, but sometime before the 5th of November, 1940, it was re-transferred to the Sub-Court and on 5th of November, 1940, an application was made for execution by the arrest of the judgment-debtor. The judgment-debtor in the two suits, Small Cause Suit No. 2 of 1940 and Small Cause Suit No. 79 of 1940 was the same. On 19th November, 1940, the petitioner applied to the Subordinate Judge for rateable distribution in respect of the assets realised in execution of the decree in Small Cause Suit No. 79 of 1940. The learned Subordinate Judge dismissed this application by a short order in which he observed:

There has been no transfer of the decree to this Court by the decreeing Court, namely, this Court on its small cause side. The petition is therefore not maintainable and is dismissed.

Under Section 73 of the Code of Civil Procedure in order that a decree-holder may be entitled to rateable distribution an application has to be made for execution to the Court holding the assets before the receipt of those assets. The question in this civil revision petition therefore is whether the petitioner's execution petition was filed in the same Court or in a different Court from the Court in which the assets in respect of the execution of the decree in Small Cause Suit No. 79 of 1940 were received. The contention put forward on behalf of the petitioner in substance is that since both the petitioner's suit and the respondent's suit were small cause suits, the Court of the Subordinate Judge of Vellore is one and the same Court in respect of them even though the decree in one of the suits is executed on the original side of the Court. This contention is opposed to-the only decision of this Court on the question which either side has been able to cite. That is a decision by Tyabji, J., in Chella Narasiah v. Sontan Obbayya : (1913)25MLJ601 . In that case the facts are not distinguishable from the facts of the present case except that it is not entirely clear whether two small cause suits were in question or one small cause suit and one original side suit. In any case, the learned Judge held that in order to entitle a party to rateable distribution the decree of the applicant must either have been passed by the same Court which received the assets or there must have been a transfer of the decree to that Court; and he held that the Court of the District Munsiff in the exercise of its small cause jurisdiction is not the same Court as the Court in exercise of its ordinary jurisdiction. The contention for the petitioner is that this decision, even if two small cause suits were in question, should not be followed by reason of the provisions, of Section 33 of the Provincial Small Cause Courts Act. The argument is that under Section 33 the Court which is invested with small cause powers is one Court with respect to the exercise of its small cause jurisdiction and another Court with respect to the exercise of its jurisdiction in suits of a civil nature which are not cognizable by a Court of Small Causes; and that, that being so, a Court cannot under any circumstances be one Court when exercising its jurisdiction in respect of one small cause suit and another Court when exercising its jurisdiction in respect of another small cause suit. In short the contention is that the Court is still exercising small cause jurisdiction even when it is dealing with a small cause suit the decree in which is being executed on the original side. This contention in my opinion is quite untenable in view of the provisions of Section 7 and of Order 21, Rule 82 Of the Code of Civil Procedure as well as of Section 34 of the Provincial Small Cause Courts Act itself. Under Order 21, Rule 82 of the Code of Civil Procedure sales of immovable property in execution of decrees may be ordered by any Court other than a Court of Small Causes and under section .7 the provisions of the Code relating to the execution of decrees against immovable properties do not extend to Courts constituted under the Provincial Small Cause Courts Act. Furthermore, it is clear from the terms of Section 34 of the Provincial Small Cause Courts Act that execution of small cause decrees either on the original side or on the small cause side of the Court is contemplated. It is clear, therefore, that if for the purposes of execution a small cause decree has to be transferred to the original side of a Court presided over by the same Judge for the reason that the sale of immovable property in execution of that decree can only be ordered by a Court other than a Court of Small Causes, the assets received by reason of the sale in execution of the decree must be regarded as received on the original side of the Court, i.e., in a Court other than a Court of Small Causes. With respect therefore, I agree with the decision of Tyabji, J., in Chella Narasiah v. Sontan Obbayya : (1913)25MLJ601 .

2. It has also been argued by learned Counsel for the petitioner that his execution petition when retransferred back from the District Munsiff's Court, Vellore, should, in any case, be considered to have been retransferred to the original side of the Subordinate Judge's Court. The reason advanced in support of this contention is that when transferred to the original side of the District Munsiff's Court, Vellore, the suit assumed the character of an original suit and so on retransfer should automatically be taken to have been transferred to the original side of the Subordinate Judge's Court. This contention cannot be sustained; first because the orders of transfer and retransfer are not before me; and secondly because, in the absence of any order to the contrary, it must be taken that the District Munsiff on application being made, retransferred the suit to the Court which passed the decree, namely, the Court of the Subordinate Judge of Vellore in the exercise of its small cause jurisdiction.

3. In the result, therefore, the petition is dismissed with costs.


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