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ismail Solomon Bhamji Vs. Mahomed Khan and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtKolkata
Decided On
Judge
Reported in(1891)ILR18Cal296
Appellantismail Solomon Bhamji
RespondentMahomed Khan and anr.
Excerpt:
attachment - claim to attached property in calcutta court of small causes--suit in high court by unsuccessful claimant--res judicata--code of civil procedure (x of 1882), sections 278 and 283--presidency small cause courts' act (xv of 1882), sections 9, 23 and 37--act x of 1888, section 2. - .....23, the small cause court, with the sanction of the local government, while retaining the other claim sections, excluded section 283, and the effect of the amending act x of 1888 is, i think, to maintain the exclusion. under section 9, the small cause court, with the sanction of this court, has made rules for dealing with claims, the effect of which is that the claimant files a plaint, and the matter is then treated as a suit.9. in my opinion an order made upon a claim filed under section 278 of the civil procedure code is an order in the suit, within the meaning of section 37 of the presidency small cause courts act. the words in section 278 to the effect that the court is to investigate the claim with the like power, as regards the examination of the claimant or objector, and in.....
Judgment:

Wilson, J.

1. The plaintiff sues on allegations in his plaint which are in substance to this effect:The now defendant, in execution of a decree of the Calcutta Court of Small Causes against a third person, caused to be attached a pair of horses which, the plaintiff says, are his property. The plaintiff filed a claim in the Small Cause Court, and his claim was disallowed with costs. He applied for a new trial, and his application was refused. He now sues to establish his title to the horses, and for damages.

2. The case came on for settlement of issues, and the question for decision is whether, on the above statement of facts, this suit will lie. Had the previous proceedings taken place in a Court other than the Small Cause Court, there is no doubt that such a suit could be maintained, for it is expressly given by Section 283 of the Civil Procedure Code; and if it can be maintained, there is no doubt that this is the proper Court. But the case stands on a different footing by reason of the proceedings having been in the Small Cause Court.

3. The sections of the Presidency Small Cause Court Act, XV, of 1882, which it is necessary to consider are the following:

4. Section 9: 'Except as otherwise provided by this or any other law for the time being in force, the Small Cause Court may, with the previous sanction of the High Court, make rules to provide in such manner as it thinks fit for all matters not specially provided for by this Act, and for the exercise, by one or more of its Judges, of any powers conferred on the Small Cause Court by this Act or by any other law for the time being in force'.

5. Section 23: 'The portions of the Code of Civil Procedure specified in the second schedule here to annexed shall extend, and shall, so far as the same may, in the judgment of the Court, be applicable, be applied to the Small Cause Court, and the procedure prescribed there by shall be the procedure followed in the Court in all suits cognizable by it except where such procedure is inconsistent with the procedure prescribed by any specific provisions of this Act. Provided that the Court may, subject to the control of the Local Government, from time to time by notification in the official Gazette, declare that any of the said portions of the said Code shall not extend and be applied to the Small Cause Court, or that any of such portions shall so extend and be applied with such modifications as the Court, subject to the control aforesaid, may think fit'.

6. Section 26, paragraphs 2, 3, and 4: 'When any claim preferred or objection made, under Section 278 of the Code of Civil Procedure, is disallowed, the Small Cause Court may in its discretion order the person preferring or making such claim or objection to pay to the decree-holder, or to the judgment-debtor, or to both, by way of satisfaction as aforesaid, such sum or sums as it thinks fit.

And when any claim or objection is allowed the Court may award such compensation by way of damages to the claimant or objector as it thinks fit; and the order of the Court awarding or refusing such compensation shall bar any suit in respect of injury caused by the attachment.

Any order under this section may, in default of payment of the amount payable thereunder, be enforced by the person in whose favour it is made against the person against whom it is made as if it were a decree of the Court.

7. Section 37: 'Save as is herein specially provided, every decree and order of the Small Cause Court in a suit shall be final and conclusive; but the Court may, on application of either party, made within eight days from the date of the decree or order in any suit (not being a decree passed under Section 522 of the Code of Civil Procedure), order a new trial to be held, or alter, set aside, or reverse the decree or order, upon such terms as it thinks reasonable, and may, in the meantime, stay the proceedings'.

8. Among the sections of the Procedure Code specified in the second schedule to the Act were the sections relating to claims by third parties to property attached in execution, including Section 283, which gives a right of suit to get rid of the effect of the decision upon a claim in the following terms: 'The party against whom an order under Sections 280, 281, or 282 is passed may institute a suit to establish the right which he claims to the property in dispute, but subject to the result of such suit, if any, the order shall be conclusive'. But in exercise of the power given by the proviso to Section 23, the Small Cause Court, with the sanction of the Local Government, while retaining the other claim sections, excluded Section 283, and the effect of the amending Act X of 1888 is, I think, to maintain the exclusion. Under Section 9, the Small Cause Court, with the sanction of this Court, has made rules for dealing with claims, the effect of which is that the claimant files a plaint, and the matter is then treated as a suit.

9. In my opinion an order made upon a claim filed under Section 278 of the Civil Procedure Code is an order in the suit, within the meaning of Section 37 of the Presidency Small Cause Courts Act. The words in Section 278 to the effect that the Court is to investigate the claim with the like power, as regards the examination of the claimant or objector, and in other respects, as if he were a party to the suit, are strong to show this. It follows that by the terms of Section 57 of the Presidency Small Cause Courts Act the order is final, subject only to the right to apply for a new trial. And there can be no doubt that the omission of Section 283 from the sections of the Procedure Code applied to the Small Cause Court was intended to give effect to this view.

10. The balance of convenience is, I think, altogether in favour of the same view. Under the rules of the Small Cause Court claims are not tried summarily; they are dealt with just as suits are, with the same remedy in case of mistake by application for a new trial, and the Court has full power to award damages to either party. A person who thinks himself aggrieved by the seizure of goods, in execution of a Small Cause Court decree, has his choice of remedies. He may bring an ordinary suit in the proper Court, or he may make a claim in the Small Cause Court. In either case his rights are fully tried out, and it would, I think, be inconvenient and contrary to sound principle to allow him to try first one remedy and then the other. The suit is dismissed with costs.


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