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A.K. Tops Vs. Karnani Industrial Bank, Ltd. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1932Cal441
AppellantA.K. Tops
RespondentKarnani Industrial Bank, Ltd.
Excerpt:
- .....mrs. tops from dealing with the property. mr. mitter appears for the karnani industrial bank. mrs. tops appeared in person. mr. mitter has argued the matter fully and has given me every assistance.7. mr mitter's first point is that an application having once been made vender 'section 60, small cause courts act and having resulted in a final order whatever the form of that order, there is no right in the claimant to proceed under section 61, and that if the court entertains the suit or proceeding under section 61, in these circumstances it does so without jurisdiction. he has argued that the analogy of application under order 21, civil p.c., and subsequent suit under rule 63 of that order by the party dissatisfied with the result of the application does not apply to proceedings.....
Judgment:

Ameer Ali, J.

1. This is an application under Section 115, Civil P.C.

2. The short facts appear to be as follows.

3. There was a lease by the Karnani Industrial Bank, Limited, of premises No. 45, Park Street, to a firm of chemists Chandler & Co. Chandler & Co.'s rent fell into arrears and on 25th March 1931, the landlord distrained.

4. On 27th March 1931 the lady who is the respondent to this application, Mrs. A. K. Tops, applied to the Small Cause Court for release of the goods distrained upon. That application was under Section 60, Small Cause Courts Act and in her petition Mrs. Tops stated that she was pro-pared to pay the arrears of rent. How precisely that application was dealt with is not clear but apparently, Mrs. Tops did not pay the rent in arrear and there was an order by the Judge, before whom the application was made on 30th March for sale of the goods distrained upon. That is the whole order. It does not purport to deal with the question of title.

5. On or about 1st April 1931, Mrs. Tops applied (in fact before another Judge) under Section 61, Small Cause Courts Act. The application was (as it should be) in the form of a plaint and in this application as opposed to the previous application, Mrs. Tops claimed to be entitled to the property as mortgagee in possession as a matter of right. It appears that the details of the procedure or the machinery specified in part 1, Section 61, Small Cause Courts Act, were not followed, that is to say, the Bummons was not issued by the Registrar on the application of the bailiff. But notice in some form or other was given to the Karnani Industrial Bank, Limited and the bank appeared: it filed a written statement in which every possible point was taken and the matter was tried on evidence by Mr. Remfry. The learned Judge delivered a judgment on 27th April 1931, which has been read to me, finding in the claimant's favour. From this finding an appeal was preferred under Section 38 to the Full Bench which rejected the appeal.

6. This application was made on 12th May 1931 and an interim injunction was obtained restraining Mrs. Tops from dealing with the property. Mr. Mitter appears for the Karnani Industrial Bank. Mrs. Tops appeared in person. Mr. Mitter has argued the matter fully and has given me every assistance.

7. Mr Mitter's first point is that an application having once been made vender 'Section 60, Small Cause Courts Act and having resulted in a final order whatever the form of that order, there is no right in the claimant to proceed under Section 61, and that if the Court entertains the suit or proceeding under Section 61, in these circumstances it does so without jurisdiction. He has argued that the analogy of application under Order 21, Civil P.C., and subsequent suit under Rule 63 of that order by the party dissatisfied with the result of the application does not apply to proceedings in the Small Cause Court. I do not think it is necessary to invoke analogy. To my mind the effect of these two sections is as follows: the first section provides for summary and immediate relief against distraint. It allows a debtor to come in and to obtain time; it allows the owner to procure immediately a release of the property upon terms. Section 61, on the other hand, provides for the adjudication of the claimants' right and title to the property. I therefore think that Mrs. Tops, having made her application under Section 60 (whatever the result of that application) was not precluded from taking further steps to establish her title.

8. The second point, namely, that the precise procedure provided for in Section 61 was not followed and that therefore there was a defect in jurisdiction also to my mind fails. It is true that the only method specified for initiating these proceedings is that described in Clause (1), Section 61. But to my mind the mere fact that the summons or notice did not proceed in the peculiar way prescribed in the first portion of Section 61 does not, where a trial takes place both parties having had notice, having filed pleadings, having appeared, evidence having been taken, deprive the Court of jurisdiction or vitiate the trial. The matter specified in Section 115, Civil P. C, are in a sense matters of procedure but all matters of procedure do not come within Section 115.

9. In my opinion the grounds put forward do not entitle the bank to an order under that section.

10. I therefore dismiss the application. The injunction will be discharged. No order as to costs.


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