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Jaminibala Debi Vs. Karali Prasad Mukherjee - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1921Cal242,67Ind.Cas.6
AppellantJaminibala Debi
RespondentKarali Prasad Mukherjee
Cases Referred and Venkatachella Reddy v. Muthialu Reddy
Excerpt:
provincial small cause courts act (ix of 1887), section 27 - decree or order of small cause court--transfer to ordinary court for execution--order in execution, whether appealable. - .....the madras decision and the widow must consequently be deemed a party to the suit, even though the suit was dismissed as against her. we are not unmindful that it has been ruled in the case of krishnappa mudaly v. periaswamy mudaly 38 ind cas 297 : 40 m. 964 : 21 m.l.t. 121; l.w. 369 : 32 m.l.j. 532 and sham lal sahu v. amar prasad 39 ind. cas. 656 : 2 p.e.j. 219 : 3 p.l.w. 422, that the explanation does not apply to a case where a suit has been dismissed against a person on the ground of misjoinder of parties, as in such an event, it cannot be appropriately said that, that person is a party to the suit. the decision in krishnappa mudly v. periaswamy mudaly 38 ind cas 297 : 40 m. 964 : 21 m.l.t. 121; l.w. 369 : 32 m.l.j. 532 was, however not followed in wedisetti venkatasami v. kunchalla.....
Judgment:

1. We are invited in this Rule to set aside an order of refusal of a District Judge to hear an appeal on the ground that no appeal lay, inasmuch as the order of the Court of first instance was made in the course of proceedings in execution of a decree made by a Court of Small Causes.

2. It appears that on the death of one Bhabadeb Bhutta his creditor Karali Prasad Mukherjee instituted a suit against his three infant sons and his widow. The claim was based as against the sons on the ground that they were the legal representatives of the deceased debtor and as against the widow on the ground that she had taken possession of the moveables which formed part of the estate left by the deceased The suit, which was instituted in a Court of Small Causes was decreed against the infant sons, but was dismissed as against the widow because she was not proved to be in possession of the moveables of the estate. The judgment of the Small Cause Court Judge states that as the widow was not an heir, she was not a necessary party, but for the reason that she was alleged to be in possession of a portion of the assets left by the deceased debtor. The suit was thus not dismissed against the widow on the ground that she was not a necessary party; it was tried on the merits against her and was decided in her favour, because the allegation that she was in possession of the moveables of the estate was not established by the evidence. This decree was transferred to the Court of the Munsif for execution by attachment and sale of the immoveable properties left by the deceased debtor. This order of transfer was made under Section 39, Civil Procedure Code, in view of the provisions of Order XXI, Rule 82 that an attachment of immoveable property cannot be effected by a Court of Small Causes. When the immovable properties were attached, the widow appeared and objected on the ground that she had acquired good title thereto under a conveyance from her husband dated the 23rd January 1919. This objection was registered as a case under Section 47, Code of Civil Procedure. There was a regular investigation and the Court came to the conclusion that the objection was not sustainable. The widow thereupon preferred an appeal to the District Judge. The District Judge has refused to entertain the appeal on the ground that no appeal lay inasmuch as the decree under execution bad been passed by a Court of Small Causes. This view is clearly erroneous.

3. Section 27 of the Provincial Small Cause Courts Act is in these terms; 'Save as provided by this Act, a decree or order made under the foregoing provisions, of this act by a Court of Small Causes shall be final' The orders thus made final are orders made by a Court of Small Causes; so that if this decree had been executed by the Court of Small Causes itself, the order in execution would have been final: Raj Kumar Lal v. Bulaki Miyan 42 Ind. Cas. 467 : 3 P.L.W. 146, Alogamuthu Pillai v. Devasagaya Fernandez 32 Ind. Cas. 284. 19. M.L.T. 146 : 3 L.W. 34 : (1916) 1 M.W.N. 78. When, however, the decree has been transferred to the ordinary Court to be executed as if it were a decree made by that Court., the orders made in execution are appealable in the same way as orders made in execution of decrees passed by that Court; this is in accordance with the view adopted in Atwari v. Moinu Lal 1 Ind. Cas. 553 : 31 A. 1; A.W.N. (1908) 254 : 5 A.L. J.612, although a second appeal would be barred under Section 102, Code of Civil Procedure. We hold accordingly that the ground assigned by the District Judge in support of his order of refusal to entertain the appeal cannot be upheld.

4. It has been argued, however, that the appeal preferred to the District Judge was incompetent, because the order was made not under Section 47, but under Order XX, Rule 58 of the Code. In our opinion this contention is not well-founded. The Explanation to Section 47 of the Code provides that for the purposes of the section a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit. This Explanation was inserted in view of the divergence of judicial opinion which had prevailed under the Code of 1882. Under that Code it had been held by the Allahabad High Court in Kalka Prasad v. Basant Ram 23 A. 346; A.W.N. (1901) 92, Sheo Pargus Singh v. Nawab Singh 5 Ind. Cas. 496 : 32 A. 321 : 7 A.L.J. 264 and by this Court in Rahimuddi Sirkar v. Loll Meah 29 C. 696 : 6 C.W.N. 727 and Ram Pershad v. Jagennath Ram 80 C.134 : 6 C. W.N. 10 that the plaintiff whose suit had been dismissed and the defendant against whom a suit had been dismissed could not be considered as parties to the suit. On the other hand, the Madras High Court had held in Rameswami Sastrulu v. Kameswaramma 23 M. 361 : 10 M.L.J. 126 : 8 Ind. Dec. (N.S.) 653 (F.B.), that such a plaintiff and such a defendant must be regarded as parties to the suit; see also Gowri v. Vigneshvar 17 B. 49 : 9 Ind Dec. (N.S.) 32. The present Code gives effect to the view taken in the Madras decision and the widow must consequently be deemed a party to the suit, even though the suit was dismissed as against her. We are not unmindful that it has been ruled in the case of Krishnappa Mudaly v. Periaswamy Mudaly 38 Ind Cas 297 : 40 M. 964 : 21 M.L.T. 121; L.W. 369 : 32 M.L.J. 532 and Sham Lal Sahu v. Amar Prasad 39 Ind. Cas. 656 : 2 P.E.J. 219 : 3 P.L.W. 422, that the Explanation does not apply to a case where a suit has been dismissed against a person on the ground of misjoinder of parties, as in such an event, it cannot be appropriately said that, that person is a party to the suit. The decision in Krishnappa Mudly v. Periaswamy Mudaly 38 Ind Cas 297 : 40 M. 964 : 21 M.L.T. 121; L.W. 369 : 32 M.L.J. 532 was, however not followed in Wedisetti Venkatasami v. Kunchalla Chidambaram 45 Ind. Cas. 671 : 23 M.L.T. 206 and Vaddadi Sannamma v. Bodaganti Radh bhayi 43Ind. Cas. 935 : 41 M. 418 : 22 M.L.T. 532 : 34 M.L.J. 17 : (1918) M.W.N. 23 : 7 L.W. 284 (F.B.) and cannot be reconciled with Abdul Kasim v. Thambuami Pillai 37 Ind. Cas. 673. (1917) M.W.N. 93 : 5 L.W. 701 and Venkatachella Reddy v. Muthialu Reddy 54 Ind. Cas. 536 : 37 M.L.. J. 624. The present case is, plainly, not affected by this conflict of judicial opinion in Madras. Here although the opinion was expressed that the widow was not a proper party because she was not one of the heirs of the deceased debtor, yet she was treated as a proper party by reason of the allegation against her that she was in possession of the moveables of the estate. On this basis, the suit was tried against her and she succeeded on the merits, We must consequently hold that she was a party to the, suit within the meaning of Section 47, Code of Civil Procedure. Consequent the objection raised by her to the attachment of the properties covered by the conveyance executed in her favour by her husband, was rightly treated by the Court of first instance as comprehended within the scope of Section 47, the decision of such a question operates as a decree under Section 2, Civil Procedure Code, and is appealable in the same manner as other decrees under Section 96, Civil Procedure Code.

5. The result is that the Rule is made absolute and the case returned to the District Judge in order that be may proceed to hear the appeal. The petitioner is entitled to the costs of this Rue--one gold mohur.


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