1. This was a Rule granted under Section 622 of the Code of Civil Procedure and Section 38 of the Presidency Small Cause Court Act to show cause why an order dated the 24th July 1903, directing a new trial made in the suit should not be set aside. The ground upon which the Rule was granted was the want of jurisdiction.
2. The circumstances under which the Rule was obtained are these: On the 2nd March 1903, the petitioner obtained a decree in the Small Cause Court for Rs. 177-3 including costs and on the 25th April in execution attached a tiled hut and certain moveable articles as belonging to the judgment-debtor. Thereupon the plaintiff in the present suit alleging that he was the owner of the hut and the moveable articles, paid that amount together with Rs. 2-8, said to have been incurred for peons' wages in connection with the attachment, into Court, to the credit of the original suit, and filed a suit in the Small Cause Court against the petitioner claiming the amount so paid by him as damages, caused by the wrongful conduct of the petitioner in making the attachment, alleging that he had been humiliated and had suffered in reputation as a trader, and had been obliged to pay the amount of the petitioner's decree to save his honour and reputation. This suit was originally dismissed for want of jurisdiction, but on an application to the officiating Chief Judge and the Judge, who had dismissed the suit, an order was made for a new trial, and this is the order against which the Rule is directed.
3. Ordinarily where property attached as being the property of a judgment-debtor is claimed by a third person, that third person may file a claim, and where the Court has jurisdiction to try the question, the title to the property is determined in the execution proceedings. Tiled huts are immoveable property and as the law stands at present, the Small Cause Court has no jurisdiction to try a question of title to such huts as between an attaching creditor and a third person, who alleges that they belong to him and not to the judgment-debtor. It has been found that the law in this respect has been productive of inconvenience and hardship to suitors, claimants to tiled huts which have been attached being forced to bring suits in this Court to establish their title, the value in most cases being exceedingly small; and I believe the attention of the Legislature has been drawn by this Court to the question of the jurisdiction of the Small Cause Court, to entertain claims in execution proceedings to tiled huts with a view to amendment of the law.
4. The plaintiff in the present case did not file a claim to the tiled hut in question in the execution proceedings and, as he ought to have done, apply for a stay of the proceedings, until he had an opportunity of instituting a suit in this Court to establish his title. But what he has done was to file a suit for damages for trespass. It has been frequently held that the Small Cause Court has jurisdiction to try a question of trespass to immoveable property and that its jurisdiction is not ousted, because a question of title may incidentally arise. But the present is not a mere suit for trespass, as was the case of Peary Mohun Ghosaul v. Harran Chunder Gangooly (1885) I.L.R. 11 Calc. 261. The so-called trespass was, so far as appears, done under a bond, fide claim by-the petitioner that the tiled hut was the property of the judgment-debtor of the petitioners. The sole object of the plaintiff in filing his suit was manifestly to try the title to the attached hut. To use the words of Melvill J. in Jamnadas v. Bai Shivkor (1881) I.L.R. 5 Bom. 572, the present was not a case in, which the real object of the suit was to obtain a remedy which a Small Cause Court might properly give, and on which a question of title to immoveable property only incidentally cropped up for decision.
5. Under these circumstances I must hold that the order of the Small Cause Court, based, as it was, on the ground that the Small Cause Court had jurisdiction to determine the suit, was itself without jurisdiction. The rule will accordingly be made absolute with costs.