1. The plaintiff obtained a decree against one Ram Behary Khettry. The decree was transferred for execution to the Calcutta Small Cause Court and a claim was put in by the first defendant Thakurdye Thakurani. Proceedings were taken, on that claim and proceeded for some time. The plaintiff took two adjournments and apparently between the dates of the adjournments, filed the present suit in this Court, claiming among other reliefs an injunction restraining the defendant, Thakurdye Thakurani, from proceeding with her claim in the Small Cause Court.
2. It is certainly an objection to this application that it has been so long delayed after the plaintiff; had himself initiated the proceedings which he now seeks to restrain. The plaintiff himself had the decree transferred for execution to the Small Cause Court which he asked to execute the decree. Upon a claim being made in those execution proceedings he for a considerable time acquiesced in that claim being heard in the Small Cause Court.
3. There is, however, a more serious objection to the application; one in fact which goes to the root of it. The ground upon which this suit is filed is that only this Court can determine the question of title to the tiled huts which are the subject of the execution proceedings in the Small Cause Court.
4. It has been argued that prior to the amendment of the Small Cause Court Act (XV of 1882) by Act IV of 1906, that Court could not adjudicate a question of possession as regards tiled huts in claim proceedings, and that the only effect of the Amended Act is to give the Small Cause Court power to, deter mine the question of possession and nothing move. In my opinion, however, this contention is not sound, and the Small Cause Court has jurisdiction to try the question of title to the tiled-huts which are the subject matter of the execution proceedings and of this suit.
5. Section 28 of the Act formerly contained the words.... 'And shall for the purpose of execution of such decrees'.... These words were considered in Deno Nath Batabyal v. Nuffer Chunder Nundy (1899) I.L.R. 26 Calc. 778 ; 3 C.W.N. 690. The Appeal Court in Deno Nath Batabyal v. Adhor Chunder Sett (1900) 4 C.W.N. 470, reversed that decision, the Chief Justice pointing out (at p. 473) that the words under the Act prior to its amendment were--'for the purpose of execution of such decree' and that the words were not' for the purpose of deciding all questions arising in the execution of such decree,' It appears to me that if these latter words had existed in the former Act, the decision of the Appellate Court would have confirmed that of the Court of first instance.
6. Now, what do we find? We find that the Legislature in 1906 by the amending Act of that year have, in Section 28 of the Presidency Small Cause Court Act, inserted the very words which occur in the judgment of the Chief Justice in Deno Nath Batabyal v. Adhor Chunder Sett (1900) 4 C.W.N. 470, at page 473. The words are 'and for the purpose of deciding all questions arising in the execution of such decree.'
7. Now, there is no doubt this is a question which arises in execution of the decree. It is, however, said that the only question which can be decided is the question of possession but the Act itself says all questions,' and I think that in this, as in other cases, the plain meaning is to be attached to the words of the Legislature, and that all questions arising in the execution of the decree, under Section 28, can be decided by the Small Cause Court.
8. I have no doubt myself that the intention of the amendment was to remove from the jurisdiction of this Court the trial of cases relating to tiled huts and that as these tiled huts were under the ordinary law immoveable property, it became necessary to invest the Small Cause Court with jurisdiction to try the title to such huts provided that the question of title arose in a particular way, viz., that stated in Section 28 of the Presidency Small Cause Court Act. To that extent it may he that Section 28 affects the provisions of Section 19 of that Act.
9. It is then contended that the section only applies to a decree of the Small Causes Court and that this was a decree, not of the Presidency Small Cause Court, but a decree transferred for execution to that Court. I think, however, the answer to this objection is, that the Small Cause Court in executing the decree of another Court transferred to it, has the same powers as it possesses in regard to its own decrees.
10. The result, therefore, is that the Rule must be discharged with costs as against the defendant, Thakurdye Thakurani.
11. I think also that the other defendant is entitled to his costs, as the terms of the Rule which was served upon him were 'to show cause why he should not pay to the plaintiff his costs of, and incidental to, the application.'
12. The plaintiff having allowed the Rule to go against this defendant in these terms, he is entitled to appear and protect himself against an order for costs.