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Palani Mudaliar and ors. Vs. Kaveri Ammal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1936Mad551; 166Ind.Cas.385
AppellantPalani Mudaliar and ors.
RespondentKaveri Ammal and anr.
Cases ReferredPhul Kumari v. Ghanshyam Misra
Excerpt:
.....the petitioner-plaintiffs having unsuccessfully claimed certain moveables attached by order of the city civil court instituted a suit in that court to establish their right to the property in dispute. i may observe in passing that what the full bench decided in the particular case was that a suit by an unsuccessful party in claim proceedings in the small cause court to recover property attached by order of that court is not a suit for a declaratory decree within section 19, clause 8, small cause courts act, and is therefore cognizable by that court. but the learned judge of this court before whom the suit came, took the objection that order 21, rule 53, of the small cause court rules of procedure, which alone gives the court jurisdiction to entertain a suit of this kind, was confined to..........the petitioner-plaintiffs having unsuccessfully claimed certain moveables attached by order of the city civil court instituted a suit in that court to establish their right to the property in dispute. this was in pursuance of the power given by order 21, rule 63 of the code. the plaint was returned by the court. i have some difficulty in understanding the reason; but apparently the learned judge of the city civil court took the view that since the full bench in rajammal v. narayanasami naicker 1915 39 mad 219 had ruled that the small cause court was competent to entertain such a suit, that court was the proper court to which the plaint should be presented. i may observe in passing that what the full bench decided in the particular case was that a suit by an unsuccessful party in claim.....
Judgment:
ORDER

Cornish, J.

1. This Revision Petition raises a question of the Presidency Small Cause Court's jurisdiction.

2. The petitioner-plaintiffs having unsuccessfully claimed certain moveables attached by order of the City Civil Court instituted a suit in that Court to establish their right to the property in dispute. This was in pursuance of the power given by Order 21, Rule 63 of the Code. The plaint was returned by the Court. I have some difficulty in understanding the reason; but apparently the learned Judge of the City Civil Court took the view that since the Full Bench in Rajammal v. Narayanasami Naicker 1915 39 Mad 219 had ruled that the Small Cause Court was competent to entertain such a suit, that Court was the proper Court to which the plaint should be presented. I may observe in passing that what the Full Bench decided in the particular case was that a suit by an unsuccessful party in claim proceedings in the Small Cause Court to recover property attached by order of that Court is not a suit for a declaratory decree within Section 19, Clause 8, Small Cause Courts Act, and is therefore cognizable by that Court.

3. The plaint was then presented to the Small Cause Court. But the learned Judge of this Court before whom the suit came, took the objection that Order 21, Rule 53, of the Small Cause Court rules of procedure, which alone gives the Court jurisdiction to entertain a suit of this kind, was confined to a suit arising out of an unsuccessful claim petition to property attached by order of this Court. He therefore ordered the plaint to be returned for presentation to the proper Court, without indicating what in his opinion that proper Court might be. I think his decision was right, but I prefer to put it on a somewhat different ground from that chosen by the learned Judge. In Rajammal v. Narayanasami Naicker 1915 39 Mad 219 the Full Bench referred to the ruling of the Judicial Committee in Phul Kumari v. Ghanshyam Misra (1908) 35 Cal 202, where it was pointed that the statutory suit given to the unsuccessful party in claim proceedings under the Code involves in every case a prayer for the setting aside of a summary order of a civil Court.

4. Now it seems to me to stand to reason that in such case the Small Cause Court cannot entertain a suit of which the aim and object is to release property from an attachment made by order of the City Civil Court. If the suit succeeded it would involve the setting aside of an order made by the City Civil Court over which the Small Cause Court has no jurisdiction or control whatever. I see no reason why the City Civil Court should not have entertained this suit. Section 3, City Civil Courts Act, does not stand in the way. What it says is that the Court has jurisdiction to receive, try and dispose of all suits and proceedings of a civil nature not exceeding Rs, 2,500 in value and arising within the City of Madras except suits or proceedings which are cognizable by the Small Cause Court. The value of the subject-matter of this suit (Rs. 95) is well within the jurisdictional value 'of suits which the Small Cause Court can entertain. But as already stated, I think this suit was not cognizable by the Small Cause Court. The Revision Petition is therefore dismissed; but as both the learned advocates agree that it should be regarded as a test case in which costs should not be given. I make no order for costs.


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