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Vadamalai Pillai Vs. Munuswami Goundar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1969)2MLJ166
AppellantVadamalai Pillai
RespondentMunuswami Goundar
Cases ReferredRama Rao v. Pitchaya
Excerpt:
- .....munsif, acting under section 73 of the madras village courts act, is a court to which the code of civil procedure will be applicable, in particular order 9, rule 13 of the code. the petitioner was the plaintiff in a village court which granted to him an ex parte decree. the respondent filed an original petition before the district munsif having jurisdiction to set it aside. on the day the matter was posted for hearing, the petitioner was absent with the result the ex parte decree was set aside and the suit stood dismissed. the petitioner, thereafter, filed an application to set aside the ex parte order, with an application to excuse the delay in filing it. the munsif disposed of the main application on the ground that he had no power to set aside his ex parte order. in his view, order.....
Judgment:
ORDER

K. Veeraswami, J.

1. The question in these Civil Revision Petitions is whether the District Munsif, acting under Section 73 of the Madras Village Courts Act, is a Court to which the Code of Civil Procedure will be applicable, in particular Order 9, Rule 13 of the Code. The petitioner was the plaintiff in a Village Court which granted to him an ex parte decree. The respondent filed an original petition before the District Munsif having jurisdiction to set it aside. On the day the matter was posted for hearing, the petitioner was absent with the result the ex parte decree was set aside and the suit stood dismissed. The petitioner, thereafter, filed an application to set aside the ex parte order, with an application to excuse the delay in filing it. The Munsif disposed of the main application on the ground that he had no power to set aside his ex parte order. In his view, Order 9, Rule 13 of the Code of Civil Procedure did not apply to the proceeding. On that view, he dismissed both the applications. These petitions are directed against those orders.

2. It seems to me that the view of the Court below cannot be sustained. It is true that Section 73 of the Madras Village Courts Act contains the procedure for the District Munsif to follow in a petition to revise the order of a Village Court. It prescribes the period of limitation for filing such an application and confers also powers of stay of execution pending disposal of the main petition for revision. The grounds on which the Munsif can interfere with an order of the Village Court are also there in Section 73. Actually the language employed in this section is that the District Munsif may, on a petition being presented within the prescribed time by a person aggrieved by a decree of the Village Court, set it aside on proof of any one or all of the grounds mentioned. The point is whether the expression 'District Munsif' has been used in the section in the sense of nominating a person as a persona designate or to indicate the Court of the District Munsif. I think, there is no reason to think that the ' District Munsif in the section is to act as & persona designata and not as a Court. He is vested, as a Court, with all the powers of the Code of Civil Procedure, subject to specific exceptions. No doubt the Madras Village Courts Act contains elaborate provisions governing the trial of a cause in the Village Court, and the remedy by way of revision to the District Munsif. But once the District Munsif under Section 73 is held to act as a Court, in addition to the powers under the Madras Village Courts Act, he will have also the powers of a Court under the Code of Civil Procedure unless in particular context such an interpretation leads to repugnancy or inconsistency. Rama Rao v. Pitchayya : (1927)53MLJ131 , held that a revision under Section 115 of the Code of Civil Procedure would lie against an order made by a District Munsif under Section 73 of the Madras Village Courts Act. This is on the basis that the District Munsif is a Court subordinate to the High Court. It may be seen that if the District Munsif under Section 73 acted as a persona designata, clearly he will not be a Court within the meaning of Section 115 of the Code of Civil Procedure with the result that no revision would lie under that provision to this Court. Ramesam, J., in that case was of opinion:

The District Munsif acts as a Court subordinate to the High Court and the conditions of Section 115 are satisfied. The Civil Procedure Code is a general Act, and it is unnecessary to consider the question how far other sections of the Code apply to Village Courts.

I find myself, with respect, in agreement with that view. The question in this case is not whether or not all the provisions of the Code of Civil Procedure will apply to-trial of causes in the Village Courts. We are here only concerned with the procedural powers of the District Munsif acting as a Court. Once he is held to act as a Court, in my view, it is difficult to deny that Court general powers accorded to it by the Code of Civil Procedure. But my attention has been invited to Sankaran Nair v. Atchuthan : AIR1923Mad651 . I do not think that this decision is decisive of the question under consideration. What Oldfield and Devadoss, JJ., in that case held was that a District Munsif, receiving by transfer a decree of a Village Munsif's Court under Section 66 of the Madras Village Munsif's Court Act or withdrawing execution of a decree to his own file under Section 67 of the Act, had no jurisdiction to transfer it for execution to another District Munsif under Section 39 of the Code of Civil Procedure. It was held that his power to transfer was limited to sending it for execution to another Village Court. In arriving at that conclusion the Division Bench also pointed out that the Village Munsif's Court Act was a complete Code of Procedure by itself and the provisions of the Code of Civil Procedure cannot be imported into it, except to the extent provided by the Amending Act II of 1920. The Court there was not concerned with the question whether, while dealing with a petition under Section 73 of the Madras Village Courts Act, the District Munsif as a Court did not possess the powers under the Code of Civil Procedure. Lingier v. Ramakrishnier : AIR1934Mad8 , also does not take the matter further. Bardswell, J., was of opinion that a District Munsif disposing of an application under Section 73 of the Madras Village Courts Act was not bound by the provisions of the Civil Procedure Code. But there again, the learned Judge did not consider whether, if the District Munsif could be treated as a Court within the meaning of Section 115 of the Code of Civil Procedure, subordinate to the High Court, that was not sufficient to attract to that Court, the powers under the Code of Civil Procedure. Nor was any attention called to the question that once a judicial body is considered to be a Court, it could properly be denied the powers conferred on it under the Code. Bardswell, J., was aware of Rama Rao v. Pitchaya : (1927)53MLJ131 . But in his view even allowing that there could be a revision under Section 115 of the Code of Civil Procedure, from an order of the District Munsif, it did not follow that the Court whose proceedings were revised must be acting under the Code of Civil Procedure. With respect, I am unable to agree with this approach. The real point is, whether the District Munsif acting under Section 73 of the Madras Village Courts Act is acting as a Court, Civil Court and a Court Subordinate to the High Court and if that be so, whether there is any proper reason to deny such a Court the general powers available under the Code of Civil Procedure.

3. In my view, the District Munsif was entitled to invoke Order 9, Rule 13 of the Code of Civil Procedure in dealing with matters arising under Section 73 of the Madras Village Courts Act.

4. The petitions are allowed. No costs.

5. The result of this is that the District Munsif will have to dispose of the applications afresh.


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