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Kumud Behary Pal Vs. Hari Charan Sardar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1919)ILR46Cal717,53Ind.Cas.814
AppellantKumud Behary Pal
RespondentHari Charan Sardar
Excerpt:
attachment before judgment - moveables--power of the provincial small cause court--civil procedure code (act v of 1908), sections 7(b), 94. - .....are certainly of the opinion that for the purpose of interpreting clause (b) of section 7 of the code, an attachment before judgment is not one of the interlocutory orders there referred to. if it was intended to exclude from the jurisdiction of small cause courts the powers to make any order of the nature described in section 94, the words 'so far as they relate to injunctions and interlocutory orders' would be superfluous. in our opinion the only orders excluded are those specifically mentioned in section 94 as injunctions or interlocutory orders, that is to say, orders under clause (c) or clause (e) of section 94. we do not think that the new code of civil procedure has made any change in the former law, and we answer the point referred by saying that a provincial small cause court.....
Judgment:

Newbould and Panton, JJ.

1. This is a reference under Rule 1, Order XLVI of the Civil Procedure Code by the Munsif of the 2nd Court at Alipore vested with Small Cause Court powers. The point referred is Whether a Provincial Small Cause Court has the power to attach moveables before judgment.

2. The provision of the Code relating to attachment before judgment is Rule 5, Order XXXVIII. Order L of the first schedule of the Code provides that certain portions of that schedule shall not extend to Courts, constituted under the Provincial Small Cause Courts Act, 1887, or to Courts exercising the jurisdiction of a Small Cause Court under that Act. It is quite clear that there is nothing in Order L to prevent Small Cause Courts exercising powers of attachment before judgment.

3. The only other provision in the Code that requires to be considered is Section 7 of the body of the Code. Under that section, Sections 94 and 95, so far as they relate to injunctions and interlocutory orders, do not extend to Provincial Small Cause Courts or Courts exercising the jurisdiction of a Court of Small Causes.

4. The referring Munsif seems to have thought that all orders under Section 94 including those under Clause (b) of that section must be held to be interlocutory orders. In dealing with this reference it is not necessary to consider whether orders for attachment before judgment can under any circumstances be regarded as interlocutory orders; but we are certainly of the opinion that for the purpose of interpreting Clause (b) of Section 7 of the Code, an attachment before judgment is not one of the interlocutory orders there referred to. If it was intended to exclude from the jurisdiction of Small Cause Courts the powers to make any order of the nature described in Section 94, the words 'so far as they relate to injunctions and interlocutory orders' would be superfluous. In our opinion the only orders excluded are those specifically mentioned in Section 94 as injunctions or interlocutory orders, that is to say, orders under Clause (c) or Clause (e) of Section 94. We do not think that the new Code of Civil Procedure has made any change in the former law, and we answer the point referred by saying that a Provincial Small Cause Court has the power to attach moveables before judgment.


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