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Dungaram Marwary Vs. Rajkishore Deo and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1891)ILR18Cal133
AppellantDungaram Marwary
RespondentRajkishore Deo and anr.
Cases ReferredSorbojit Roy v. Gonesh Proshad Misser I.L.R.
Excerpt:
sonthal pergunnahs - act xxxvii of 1855, section 2--regulation iii of 1872, sections 3 and 4--civil courts act (xii of 1887)--suit exceeding rs. 1,000 in value--officer invested with power of a civil court--'court.' - .....is correct. section 2 of act xxxvii; of 1855 contains a proviso to the effect: 'that all civil suits, in which the matter in dispute shall exceed the value of one thousand rupees, shall be tried and determined according to the general laws and regulations as if this act had not boon passed'. now it was by virtue of this act that the sonthal pergunnahs were excluded from the operation of the general regulations of the bengal code and of the laws passed by the governor-general of india in council, so that the effect of this proviso is to make the sonthal pergunnahs a non-regulation province--that is, a place not governed by the general laws and regulations only so far as suits up to a certain value are concerned. as regards suits exceeding that limit of valuation, they are left.....
Judgment:

Macpherson and Banerjee, JJ.

1. This is an appeal from an order of the Deputy Commissioner of the Sonthal Pergunnahs, reversing an order of the Sub-Divisional Officer of Deoghur for the issue of a warrant of arrest against the respondent, judgment-debtor, in execution of a decree against him.

2. The learned Deputy Commissioner has held that, in accordance with a Government notification dated the 19th August 1867, the Code of Civil Procedure obtains in the Sonthal Pergunnahs, subject to certain qualifications one of which is, that there shall be no imprisonment in execution of a decree; and in support of this view he refers to a decision of this Court in the case of Sorbojit Roy v. Gonesh Prosad Misser I.L.R. 10 Cal. 761.

3. The value of the suit; which resulted in the decree now sought to be executed was admittedly over a thousand rupees.

4. It is con tended on behalf of the appellant, decree-holder, that the decision of the Deputy Commissioner is wrong, because the Government notification referred to by him had no application to suits where the value exceeds a thousand rupees, and because that notification, whatever its application was, was superseded by Regulation III of 1872; and it is argued that, under the provisions of Section 2 of Act XXXVII of 1855 and of Section 3 of Regulation III of 1872, the Code of Civil Procedure is in force in the Sonthal Pergunnahs as regards suits of a value exceeding a thousand rupees without any qualification.

5. We think the appellant's contention is correct. Section 2 of Act XXXVII; of 1855 contains a proviso to the effect: 'that all civil suits, in which the matter in dispute shall exceed the value of one thousand rupees, shall be tried and determined according to the general Laws and Regulations as if this Act had not boon passed'. Now it was by virtue of this Act that the Sonthal Pergunnahs were excluded from the operation of the general Regulations of the Bengal Code and of the Laws passed by the Governor-General of India in Council, so that the effect of this proviso is to make the Sonthal Pergunnahs a non-Regulation Province--that is, a place not governed by the general Laws and Regulations only so far as suits up to a certain value are concerned. As regards suits exceeding that limit of valuation, they are left to be governed by the ordinary Laws and Regulations as before. That being so, when Act VIII of 1859 was passed, notwithstanding the provisions of Section 385 of that Act, which, for the reasons just stated, excluded from the operation of that Act the Sonthal Pergunnahs only as regards suits of value not exceeding a thousand rupees, the Procedure Code of 1859 by its own force came to have operation as regards suits of a value exceeding one thousand rupees; and the Government notification referred to above related only to the procedure in suits whereof the value did not exceed a thousand rupees.

6. When Regulation III of 1872 was passed, it was enacted by Section 3 of that Regulation, read with certain subsequent amending enactments, that, with the exception of certain Acts and Regulations therein mentioned, 'no other Regulations or Acts heretofore or hereafter passed shall be deemed to be in force in the Sonthal Pergunnahs, except so far as regards the trial and determination of the civil suits mentioned in Section 2, Act XXXVII of 1855, in which the matter in dispute exceeds the value of rupees one thousand, when such suits are tried in the Courts established under Act XII of 1887'. As regards suits whereof the value exceeds a thousand rupees, the law then stands in the same way in this last-mentioned Regulation as it stood under Section 2 of Act XXXVII of 1855, that is to say, such suits continue to be governed by the general Laws and Regulations, subject only to this further condition, that they will be so governed only when the suits are tried in the Courts established under Act XII of 1887.

7. Of the two conditions, then, necessary to be satisfied in order that a suit in the Sonthal Pergunnahs may be regarded as governed by the general Laws and Regulations, one, namely the limit of valuation, is in this case admittedly satisfied; and the only question that remains to be considered is, whether in the present case was the suit tried in a Court established under Act XII of 1887, that is, under the Civil Courts Act. Now the suit here was tried by an officer in the Sonthal Pergunnahs invested by the Local Government with the powers of a Civil Court established under Act XII of 1887 under Section 4 of Regulation III of 1872; and the question is finally reduced to this, namely, whether an officer of the Sonthal Pergunnahs so invested is a Court established under Act XII of 1887.

8. It was urged by the learned vakeel for the respondent that the investiture of an officer in the Sonthal Pergunnahs with powers of a Court under Act XII of 1887 would not make him a Court established under that Act.

9. At first sight there is no doubt some anomaly in holding that he was a Court established under that Act. But, on the other hand, if the respondent's contention be correct, it would lead to this obvious result, that in regard to suits tried by officers of this class, whatever the value of these suits may be, we shall have no law governing them or regulating their procedure. That is an anomaly which, in regard to suits valued at over a thousand rupees, the Legislature could never, we think, have intended.

10. We must therefore hold that an officer invested with the powers of a Civil Court under Section 4 of Regulation III of 1872 is a Court established under Act XII of 1887 within the meaning of the third section of the same Regulation; and that being so, the suit out of which the present execution proceedings have arisen and the execution proceedings themselves must be held to be governed by the Code of Civil Procedure as it now obtains. This view is in accordance with the decision of this Court in the case of Kaliprosad Rai v. Meher Chundro Roy I.L.R. 4 Cal. 222 and also with another decision in the case of Tarini Prosad Misser v. Mohammad Chowdhry 6 C.L.R. 555.

11. It is true that the view taken by the learned Deputy Commissioner is supported by a dictum of this Court in the case of Sorbojit Roy v. Gonesh Proshad Misser I.L.R. 10 Cal. 761 that the Code of Civil Procedure obtains in the Sonthal Pergunnahs in respect of suits valued over one thousand rupees, subject to certain modifications and qualifications. But the question for decision in that case was, not whether the Code of Civil Procedure applied to suits of that class, subject to modifications and qualifications, but whether the Code applied to suits of that class at all. The conclusion that the Court arrived at in that case is the same as the one to which we have come, namely, that the Code of Civil Procedure does apply. As to whether it applies subject to any qualifications not having been a question in that case, the remarks of the Court on that point must be taken to be an obiter dictum, and therefore not binding in this case.

12. The result then is that the order of the Deputy Commissioner must be set aside, and that of the Sub-divisional Officer of Deoghur restored and the execution allowed to proceed.

13. The appellant is entitled to costs in this Court.


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