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Vali Chetti Munuswami Chetti Vs. Vali Chetti Venkataswami Chetti and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1942Mad610; (1942)1MLJ213
AppellantVali Chetti Munuswami Chetti
RespondentVali Chetti Venkataswami Chetti and ors.
Cases ReferredCivil Procedure Code Kanji v. Jivraj
Excerpt:
- - order of the registrar in a suit or proceedings subject to the same provisions in regard to a new trial as if made by a judge, is one which has a good deal of force......the extent which the judgment-debtor thought proper. the judgment-debtor, therefore, filed a new trial application under section 38 of the presidency small cause courts act. this application was rejected on the ground that the suit out of which the amended decree arose was an uncontested suit. the present revision petition is preferred against this order and it is contended that although the original suit was uncontested, when once the application under act iv of 1938 was allowed, the suit was re-opened and it became a contested suit and against the amended decree a new trial application would lie.2. section 38 of the presidency small cause courts act provides that,where a suit has been contested, the small cause court may, on the application of either party, made within eight days.....
Judgment:

Wadsworth, J.

1. The petitioner here was the judgment-debtor under a decree of the Presidency Small Cause Court. The decree was passed in 1934 without contest. After Act IV of 1938 came into force a petition was filed under Section 19 of that Act to scale down the decree and the decree was scaled down, but not to the extent which the judgment-debtor thought proper. The judgment-debtor, therefore, filed a new trial application under Section 38 of the Presidency Small Cause Courts Act. This application was rejected on the ground that the suit out of which the amended decree arose was an uncontested suit. The present revision petition is preferred against this order and it is contended that although the original suit was uncontested, when once the application under Act IV of 1938 was allowed, the suit was re-opened and it became a contested suit and against the amended decree a new trial application would lie.

2. Section 38 of the Presidency Small Cause Courts Act provides that,

Where a suit has been contested, the Small Cause Court may, on the application of either party, made within eight days from the date of the decree or order in the suit... order a new trial to be held, or alter, set aside or reverse the decree or order...

The explanation says,

Every suit shall be deemed to be contested in which' the decree is made otherwise than by consent of or in default of appearance by the defendant.

Now it is not denied that the original decree in the Small Cause Suit was passed without contest. Nor is it denied that the application under Section 19 of Act IV of 1938 was contested and resulted in an amended decree and that the amendment did not go so far as the judgment-debtor alleged to be proper., Pandrang Row, J., in C. R. P. No.. 2307 of 1939 held in a similar case that the effect of a proceeding under Section 19 of the Act was to re-open the suit for the purpose of applying the pro-visions of the Act to the decree passed in the suit and that the application must be deemed to be an application in the suit and after the suit was re-opened as was the case in this application, the suit must be deemed to be a contested one. If this position is correct, the civil revision petition must succeed.

3. It has, however, been contended by Mr. Ramaswami Aiyangar for the respondent that this position requires reconsideration and a reference has been made to the decision of one of us in Satyanarayana v. Peddi Naidu : AIR1941Mad362 where it was observed that an application under Section 19 of Act IV is not ancillary to the decree, but destructive of the decree and is not to be deemed an application in the suit, but an entirely separate proceeding. The question under consideration in that case had nothing to do with the Presidency Small Cause Courts Act. The question was as to the applicability of Section 141 of the Code of Civil Procedure to proceedings under Section 19. It is no doubt now established that a proceeding under Section 19 of the Act is not a proceeding in execution of the decree, but one which gives a new statutory remedy, whereby the decree as originally passed is modified in the light of a defence not open to the defendant at the time of the original trial and a fresh decree is substituted for that which has been passed. It follows that the proceedings under Section 19 are not proceedings under the decree originally passed and at any rate until the Court comes to the conclusion that the petitioner is entitled to re-open the suit, the proceedings cannot properly be said to be proceedings in the suit. But when that first stage has been passed and the petitioner has established that he is an agriculturist entitled to have the decree already passed modified with reference to Act IV can it be said that the proceedings thereafter are not proceedings in the suit?

4. It is possible to look at the matter in both ways and for certain purposes, the whole of the proceedings under Section 19 may be regarded as separate proceedings not within the suit, or it is possible to regard the proceedings under Section 19 as falling naturally into two stages, the first being that stage which precedes the establishment of the right to re-open the decree, the Second stage being that which follows the re-opening of the suit and decides to what extent this new defence introduced into the suit by the provisions of Act IV is entitled to succeed. For the purpose of the procedure under Section 19 in respect of adding parties, setting aside ex parte orders and so on, it may be convenient and proper to regard the whole of the proceedings as a separate petition and not a mere continuation of the suit. But when we are considering what is the remedy resulting from an amended decree, other considerations may arise. We have repeatedly held that when under Section 19 of the Act a decree is amended a regular appeal lies against that amended decree, while there is no appeal against an order refusing to amend a decree. That line of decisions gives some support for the distinction between the proceedings anterior to the Court's finding that the petitioner is entitled to have the decree amended and the further proceedings to decide how effect, is to be given to the new defence. If the petitioner is found not to be entitled to the benefits of, the Act then the proceedings end with an order on the petition which does not in any way affect the decree already passed. The suit is not re-opened and there is no particular reason for regarding those proceedings as proceedings in the suit. But if the Court decides that the petitioner is entitled to the benefits of the Act and that the decree already passed has to be reopened in the light of the new defence, it does seem reasonable to regard the Court at this later stage, when deciding to what extent the defence under the Act must result in the modification of the decree, as having re-opened the suit and as acting in continuation of the suit, just as if a fresh issue had been permitted to be raised and decided On this view, effect would be given to the remedy which under the Presidency Small Cause Courts Act is provided for a judgment-debtor against whom a decree has been passed after contest, which decree requires him to pay more than according to his contentions is payable. To hold otherwise would be to regard these proceedings which result in an amended decree as proceedings against which the petitioner has no remedy except in the rare cases where the decree can be called in question under Section 115 of the Civil Procedure Code. We are, therefore, of opinion that though the initial stages of a proceeding under Section 19 may properly be regarded as proceedings outside the suit and not in any way ancillary to the decree, when it has been decided to re-open the suit and to give effect to the defences under Act IV of 1938 so as to pass an amended decree, these later stages of the proceedings may properly be regarded as proceedings in the suit, resulting in a decree in the suit and the defendant who is dissatisfied with such an amended decree on the ground that full effect has not been given to the defence which he urged, can properly file a new trial application under Section 38 of the Presidency Small Cause Courts Act.

5. In this view, it is unnecessary to go into the further question which has been elaborately argued, i.e., whether Section 38 of the Presidency Small Cause Courts Act confers a right to ask for a new trial when an order has been passed in a contested proceedings which proceedings cannot properly be described as a suit though analogous to a suit. We have had quoted before us cases in which it has been held that proceedings under Chapter VII of the Presidency Small Cause Courts Act cannot be the foundation of a new trial application, and there are other cases dealing with applications to set aside an ex parte order in a garnishee proceeding (Murugappa Chetti v. Ranganayakulu Chetty (1910) 21 M.L.J. 525 and proceedings under Order 21, Rule 50 (2), Civil Procedure Code Kanji v. Jivraj : AIR1930Bom412 with reference to which it has been held that Section 38 has no application. But it is by no means clear that Section 38 would not apply to certain types of proceedings and the argument based on the language of Section 36 which makes a decree and. order of the Registrar in a suit or proceedings subject to the same provisions in regard to a new trial as if made by a Judge, is one which has a good deal of force. As, however, it is unnecessary in the view which we have taken to decide this question, we leave the matter open and do not decide one way or the other whether an order in an independent proceeding which is not a suit, though it has been contested and ends in a decretal order can be called into question under Section 38.

6. In the result, therefore, we allow the civil revision petition with costs and remand the new trial application to the Small Cause Court for fresh disposal in the light of this judgment.


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