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Barada Kanta Ray Vs. Sheikh Maijuddi - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in82Ind.Cas.109
AppellantBarada Kanta Ray
RespondentSheikh Maijuddi
Cases ReferredSadek Ali v. Samed Ali
Excerpt:
civil procedure cole, (act v of 1908), sections 7, 94 and 151, order xxxviii, rules 5 and 6 - attachment before judgment of immoveable property--small cause court, whether can order attachment--provincial small cause courts act (ix of 1887) section 17--'attachment' and 'order of attachment', distinction between--'interlocutory order' meaning of--small cause court, whether has inherent powers. - lancelot sanderson, c.j.1. the questions referred to the full bench are as follows:(1) whether a provincial small cause court has jurisdiction to order an attachment of immoveable property before judgment?(2) whether the case of kedarnath paramanik v. hem nath karmakar 70 ind. cas. 841 : 49 c. 994; (1923) a.i.r. (c) 176 or the case of sadek ali v. samed ali : air1924cal193 was correctly decided?2. the reference arises by reason of conflicting decision of this court in two cases viz., kedarnath paramanik v. hem nath karmakar 70 ind. cas. 841 : 49 c. 994; (1923) a.i.r. (c) 176 and sadek ali v. samed ali : air1924cal193 3. in the former case it was decided that a provincial small cause court can attach before judgment immoveable property under the code of civil procedure of 1908. in the.....
Judgment:

Lancelot Sanderson, C.J.

1. The questions referred to the Full Bench are as follows:

(1) Whether a Provincial Small Cause Court has jurisdiction to order an attachment of immoveable property before judgment?

(2) Whether the case of Kedarnath Paramanik v. Hem Nath Karmakar 70 Ind. Cas. 841 : 49 C. 994; (1923) A.I.R. (C) 176 or the case of Sadek Ali v. Samed Ali : AIR1924Cal193 was correctly decided?

2. The reference arises by reason of conflicting decision of this Court in two cases viz., Kedarnath Paramanik v. Hem Nath Karmakar 70 Ind. Cas. 841 : 49 C. 994; (1923) A.I.R. (C) 176 and Sadek Ali v. Samed Ali : AIR1924Cal193

3. In the former case it was decided that a Provincial Small Cause Court can attach before judgment immoveable property under the Code of Civil Procedure of 1908. In the latter case it was decided that a Provincial Court of Small Causes has no power to attach immoveable property before judgment under Order XXXVIII of the Civil Procedure Code of 1908 and that an order of such a Court adjudicating a claim to property so attached is ultra vires.

4. The decision in the case of Kedarnath Paramanik v. Hem Nath Karmakar 70 Ind. Cas. 841 : 49 C. 994; (1923) A.I.R. (C) 176 was not brought to the attention of the learned Judges who decided the latter case.

5. I am not surprised that there has been and is a difference of judicial opinion in respect of this question, for, in my opinion, it is by no means easy upon an examination of the various provisions relating to it to ascertain what was the intention of the Legislature with regard to this matter when the Civil Procedure Code of 1908 was passed. This presents an unsatisfactory situation, for the Provincial Small Cause Courts are obviously intended for the expeditious disposal of small causes, and it is desirable that those who preside over such, Courts and those who practise in them should be able to ascertain without any difficulty what are the jurisdiction and procedure applicable thereto. So far from that being the case in respect of the matter now under discussion, it has become necessary, in order to ascertain the powers of the Provincial Small Cause Courts, to refer the question to a Full Bench and during the argument it was necessary to examine minutely sections of the Provincial Small Cause Courts Act of 1887, the Civil Procedure Code of 1882 and the Civil Procedure Code of 1908 and the result is a difference of opinion.

6. This therefore appears to be a matter which should engage the attention of the Legislature so that the jurisdiction of the Provincial Small Cause Courts may be made clear beyond all question.

7. Section 15 of the Provincial Small Cause Courts Act, 1887, provides that a Court of Small Causes shall not take cognizance of the suits specified in the Second Schedule as suits excepted from the cognizance of a Court of Small Causes and amongst the suits excepted by that Schedule from the cognizance of a Court of Small Causes are a suit for the possession of immoveable property or for the recovery of any interest in such property, a suit for partition of immoveable property, a suit for purchase or sale or redemption of mortgaged property, a suit for assessment, etc., of rent of immoveable property.

8. Section 17 of the Provincial Small Cause Courts Act, 1887, provides that the procedure prescribed in the chapters and sections of the Code of Civil Procedure (viz., Act XIV of 1882) specified in the Second Schedule to that Code shall, so far as these chapters and sections are applicable, be the procedure followed by a Court of Small Causes in all suits cognizable by it and in all proceedings arising out of such suits.

9. Section 5 of the Code of Civil Procedure, 1882, provided that the chapters and sections specified in the Second Schedule thereto should extend to the Provincial Small Cause Courts and that the other chapters and sections of the Code should not extend to such Courts.

10. The Second Schedule included Chapter XIX (which dealt with the execution of decrees), Section 266, but there was added the exception as follows: 'Except so far as relates to immoveable property.'

11. The schedule also included Chapter XXXIV 'Of arrest and attachment before judgment except as regards immoveable property.'

12. It is therefore clear that at the time of the passing of the Provincial Small Cause Courts Act in 1887 the intention of the Legislature was that a Provincial Small Cause Court should not have power to attach immoveable property before judgment.

13. The Code of Civil Procedure, 1882, was repealed by the Code of Civil Procedure, 1908 and Section 158 provided as follows:

In every enactment or notification passed or issued before the commencement of this Code in which reference is made to or to any chapter or section of Act VIII of 1859 or any Code of Civil Procedure or any Act amending the same or any other enactment hereby repealed, such reference shall, so far as may be practicable, be taken to be made to this Code or to its corresponding part, Order, section or' rule.

14. There is, however, no part of the Code of 1908 which corresponds to the Second Schedule of the Code of 1882 and whereas the scheme of the 1882 Code was to specify the provisions of the Code which should apply to a Provincial Small Cause Court, the scheme of the 1908 Code is to make all the provisions of the Code of 1908 applicable except those which are expressly excepted. The result is that Section 17 of the Provincial Small Cause Courts Act is entirely inapposite although it remains unrepealed. This is one reason for the difficulty which has arisen.

15. On examination of the Code of 1908 and the Orders contained in the First Schedule thereto, it seems to me that the most material sections and Orders are as follows:

16. Sections 7, 36,94 and 95; Order XVI (Rule 10), Order XXI (Rule 82); Order XXXVIII, Order XXXIX.O.L.

17. Section 7 of the 1908 Code provides as follows: 'The following provisions shall not extend to Courts constituted under the Provincial Small Cause Courts Act, 1887, or to Courts exercising the jurisdiction of a Court of Small Causes under that Act, that is to say,

(a) so much of the body of the Code as relates to

(i) suits excepted from the cognizance of a Court of Small Causes; (ii) the execution of decrees in such suits (iii) the execution of decrees against immoveable property; and

(b) the following sections, that is to say... Sections 94 and 95 so far as they relate to injunctions and interlocutory orders.'

18. On reference to Section 94 it will be found that all the orders therein mentioned are 'interlocutory orders' in the ordinary meaning of the phrase and Clause (e) runs as follows: 'Make such other interlocutory orders as may appear to the Court to be just and convenient.' This clause therefore would go to show that all the orders specifically mentioned' in Section 94 are 'interlocutory orders.'

19. It was, therefore, argued on the one hand that the intention of the Legislature was to exclude all the matters mentioned in Section 91 from the jurisdiction of a Provincial Small Cause Court. On the other hand it was argued, that, if this contention were adopted, no effect would be given to the words, 'so far as they relate to injunctions and interlocutory orders' in Section 7. It was argued that some effect must be given to these words, and that they cannot be regarded as a surplusage, and further that if it-had been intended to except all the matters mentioned in Section 94, there would have been no necessity to refer to 'injunctions' in Section 7 for the only injunctions mentioned in Section 94 are 'temporary injunctions' which would be included in the phrase 'interlocutory orders' which are the subject-matter of Clause (e) of Section 94.

20. It is a well-known rule that in construing an Act, words found therein should not be regarded as surplusage, and full effect should be given to them, if a reasonable interpretation can be found.

21. In Section 94 'temporary injunctions' and 'interlocutory orders' are specifically mentioned in separate clauses, viz., (c) and (e) and in my judgment the only reasonable interpretation to be placed upon the words in Section 7, viz., 'so far as they relate to injunctions and interlocutory orders' is, that it was, intended to exclude from the jurisdiction of a Provincial Small Cause Court the matters particularly specified in Clauses (c) and (e).

22. I am confirmed in this opinion by the words which are to be found at the beginning of Section 94, viz., 'if it is so prescribed.'

23. Having regard to the definitions in the second section of the Code the meaning of these words is, if it is prescribed by the rules and Orders contained, in the First Schedule of the Code.

24. On reference to the First Schedule, it will be observed that Order XXXVIII deals with 'arrest and attachment before judgment' and Order XXXIX deals with 'temporary injunctions and interlocutory orders.'

25. Therefore, although 'orders for attachment before judgment' are in the ordinary meaning of the words 'interlocutory orders' they are placed in a different category to 'temporary injunctions' and 'interlocutory orders.'

26. Again although 'temporary injunctions' are really 'interlocutory orders' they are specifically mentioned in the schedule as being something special and distinct from 'interlocutory orders.'

27. The result of my examination of these sections therefore is the conclusion, that the framers of this legislation were dealing with 'temporary injunctions' and 'other interlocutory orders' as matters distinct from the matters specifically mentioned in Clauses (a), (b) and (d) of Section 94 and that it was intended that the provisions of Section 94, which were not to extend to Courts constituted under the Provincial Small Cause Courts Act, 1887, were the provisions contained in Clauses (c) and (e) of Section 94.

28. Clause (b) of Section 94 empowers the Court to 'order the attachment of any property.'

29. Section 7 of the Code therefore does not prevent a Provincial Small Cause Court from making such an order.

30. But such order must be of an interlocutory nature, for Section 7 of the Code and Order L in the First Schedule expressly provide that the provisions of the Code relating to the execution of decrees against immoveable property shall not extend to a provincial Small Cause Court.

31. Therefore the order for attachment contemplated by Section 94, Clause (6), must be such an order as is specified in Order XXXVIII, Rule 6, viz., an order for attachment before judgment.

32. As I am of opinion that the provisions of Clause (b) of Section 94 are not excluded by reason of Section 7 arid that the order for attachment there referred to must mean an order for attachment before judgment, it follows that, in my opinion, a Provincial Small Cause Court has jurisdiction to make an order for attachment before judgment of any property, which would include immoveable property.

33. I agree that at first sight it may appear strange that a Provincial Small Cause Court, which cannot entertain suits relating to immoveable property, and which cannot execute a decree by attachment of immoveable property or entertain a claim, which an attachment may produce, should have been given power to make 'an order for attachment of immoveable property before judgment.' There is, however, a distinction between making an order for attachment and making an attachment. It may be that if a Provincial Small Cause Court were to make an order for attachment of immoveable property before judgment, it would be necessary for that Court to transmit the order to a Court of Ordinary Civil Jurisdiction for the purpose of the order being carried out and the property attached.

34. In this connection I desire to refer to a passage in the judgment of Rankin, J., in Sadek Ali v. Samed Ali : AIR1924Cal193 which is as follows:

It is by no means absurd to suppose, that the Code of 1908 may have meant, subject to the right of the High Courts to amend the rules, to extend the power of attachment before judgment to immoveable property in the case of Provincial Small Cause Courts while refusing to such Courts the right to attach such property in execution of decrees.

I agree with that passage if the words'power, to order attachment before judgment' are substituted for the words. 'power of attachment before judgment.

35. The question, however, is whether the Legislature has extended such a power to the Provincial Small Cause, Courts.

36. It is to be noted that Order L, Clause (a), excludes from the jurisdiction of the Provincial Small Cause Courts the matters mentioned in Clause (a) of Section 7 of the Code and two other matters, viz., the execution of a decree against the interest of a partner in partnership property and the settlement of issues, and in Clause (b) specifies certain rules and orders which are not to extend to Provincial Small Cause Courts.

37. This order, however, does not mention Order XXXVIII which deals with attachment before judgment, and it does not mention Order XVI, Rule 10 or Order XXI, Rule 82.

38. Order XVI, Rule 10, deals with the procedure where a witness fails to comply with' a summons to give evidence or produce a document.

39. One of the powers given to the Court under that rule, is to attach his property.

40. But it is expressly provided that no Court of Small Causes shall make an order for attachment of immoveable property in respect of the matters referred to in that rule.

41. Similarly in dealing with the question of what Courts may order sales in execution of decrees or orders, Order XXI, Rule 82, expressly provides that sales of immoveable property in execution of decrees may be ordered by any Court other than a Court of Small Causes.

42. These two rules, therefore, show that in respect of matters which are not dealt with in Order L, when the Legislature desired to exclude them from the jurisdiction of the Provincial Small Cause Courts, it expressly said so.

43. In my opinion, therefore, it is not unreasonable to assume that if the Legislature had intended to exclude the powers conferred upon the Court by Order XXXV] II, Rules 5 and 6, from the jurisdiction of the Provincial Small Cause Courts, it would have expressly so provided as in the case of OXVI, r.10 and O.XXI, r.82.

44. On the whole, therefore, though I think the matter is by no means, free from difficulty as I have already indicated, I am of opinion that the first question referred to the Full Bench, viz., whether a Provincial Small Cause Court has jurisdiction to order an attachment of, immovable property before judgment, should be answered in the affirmative.

45. The subject of the decisions in the two cases referred to in the second question was the power of a Provincial Small Cause Court to attach immoveable property before judgment and in Sadek Ali v. Samed Ali 80 Ind. Cas. 300 : 28 C.W.N. 16 at p. 19; (1924) A.I.R. (C.) 193 the question whether the Small Cause Court could adjudicate upon a claim to immoveable property arising by reason of the attachment was also involved. The decisions were not confined to the mere question whether a Provincial Small Cause Court has power to order attachment of immoveable property before judgment. In my judgment, therefore, the answer to the second question should be that Kedarnath Paramanik v. Hem Nath Karmakar 70 Ind. Cas. 841 : 49 C. 994; (1923) A.I.R. (C) 176 was wrongly decided, and Sadek Ali v. Samed Ali : AIR1924Cal193 was rightly decided.

Walmsley, J.

46. The questions referred are whether a Provincial Small Cause Court can attach immoveable property before judgment, and which of the two decisions, opposed to one another, is correct.

47. There was no doubt upon the main question before the present Code of Civil Procedure came into force: a Court exercising the powers of a Provincial Small Cause Court could not order such an attachment. The manner in which this restriction was enacted was as follows: The Provincial Small Cause Courts Act, Section 17, runs as follows: 'The procedure prescribed in the chapters and sections of the Code of. Civil Procedure specified in the Second Schedule to that Code, shall, so far as those chapters and sections are applicable, be the procedure followed in a Court of Small Causes, in all suits cognizable, by it and in all proceedings, arising out of such suits.' The Second Schedule to the Code then in force (that of 1882) enumerated the chapters and sections of that Code extended to Provincial Courts of Small Causes and among them was Chapter XXXIV, 'Of, arrest and attachment before judgment,' with the addition 'except as regards immoveable property.'

48. The Code now in force proceeds on entirely different lines: there is no Schedule corresponding to the Second Schedule of the Code of 1882, and although the sections of Chapter XXXIV are reproduced with slight modifications in the rules of Order XXXVIII and in Section 95 of the present Code, there is nothing to be found which corresponds to the clear words 'except as regards immoveable property.' The method has in fact been changed: in place of a detailed list of provisions which do apply to Provincial Small Cause Courts, there is first in the body of the Code in Section 7 a description of the classes of provisions which do not apply, and in the First Schedule, in Order L. there is both an exclusion by class, and a list of particular provisions which do not apply. In spite of this radical change the language of the Provincial Small Cause Courts Act remains unaltered.

49. The position is, therefore, very obscure, and it is difficult to say whether the Legislature intended to lay down any rule on the subject or not. The learned Vakils, who have been good enough to lend us their help, have not, in my opinion, been able to advance any convincing argument in either direction.

50. It appears to me that we must approach the matter from the standpoint that by the Act of 1887 Provincial Courts of Small Causes are generally forbidden to have any dealings with immoveable property, both in suits and in execution proceedings. No change has been made in that principle by the new Code of Civil Procedure, and in one instance, that is, in the matter of compelling the attendance of a witness, there is a specific direction that no Court of Small Causes shall make an order for the attachment of immoveable property.

51. It would be surprising if a Court that could not execute a decree by attachment, of immoveable property Should be able to attach the same immoveable property before a decree came into being, and I am disposed to think that the provisions of section. 7 may fairly be construed to give effect to this natural inference. That section says: The following provisions shall not extend to Courts constituted under the Provincial Small Cause Courts. Act of 1887 or to Courts exercising the jurisdiction of a Court of Small Causes under that Act, viz.

(a) so much of the body of the Code as relates to--

(i)...

(II)...

(iii) the execution of decrees against immoveable property.

(b).........Sections 94 and 95, so far as they relate to in junctions and interlocutory orders. Of these two sections, the latter is practically the same as section. 491 of the old Code, the last section of. Chapter XXXIV, which, as I have mentioned, was one of the chapters enumerated in the Second Schedule. The former; authorises the Court to take certain measures to prevent the ends of justice being defeated. The measures are not new but the section is. The measures mentioned are the power to demand security from a defendant to call upon a defendant to produce property, to attach property, to issue an injunction, to appoint a Receiver. This list is followed by a fifth clause in these words 'make such, other interlocutory orders as may appear; to the Court to be just and convenient.

52. The term 'interlocutory orders' is not defined in any Statute but the orders mentioned in the first four clauses are generally, regarded as interlocutory orders and I do not think that the heading to O., XXXIX can be taken to mean that only the orders mentioned in Rules 6 to 10 of that, order are interlocutory orders. Moreover the reference in the fifth clause of Section 94 to 'other interlocutory orders' seems to mean that the preceding orders are also interlocutory orders.

53. On this view of the section, I must hold, that the Small Cause Court cannot attach property whether imoveable or immoveable. That view is contrary to the view taken in the case of Kedarnath Paramanik v. Hem Nath Karmakar 70 Ind. Cas. 841 : 49 C. 994; (1923) A.I.R. (C) 176 except in so far as I hold that the present Code makes no distinction between the power to attach immoveable property and the power to attach immoveable property, The earlier case of Kumud Behari Pal v. Hari Charan Sardar 53 Ind. Cas.814 : 46 C. 717 : 31 C.L.J. 179 to which the learned Judges referred for their reasons, was a reference as to the power to attach immoveable property, and the learned Judges were considering whether the present Code had taken away that power, and they held that an attachment of immoveable property before judgment was not an 'interlocutory order' for the purpose of Section 7(b), because that construction would render the words 'so far as they relate to injunctions and interlocutory orders' superfluous. With all deference, I venture to differ, although I confess I can find no use for the phrase just mentioned in the view that I take.

54. The conclusion to which I come is that of Rankin, J., that the power to attach immoveable property before judgment is sufficiently, if not too clearly, negatived.

55. I would, therefore, answer the first question in the negative and the second question by saying that the case of Sadek Ali v. Samed Ali : AIR1924Cal193 was correctly decided.

Newbould, J.

56. The questions which we have to decide in this Reference depend primarily on the proper interpretation of Clause (b) of Section 7 of the Code of Civil Procedure, 1908, which enumerates certain sections in the Code which shall riot extend to Provincial Small Cause Courts. Among these sections are included 'sections 94 and 95 so far as they relate to injunctions and interlocutory order's.' As pointed out by Rankin, J., in his judgment in Sadek Ali v. Samed Ali : AIR1924Cal193 'this provision is badly drafted.' The difficulty arises from the fact that Section 94 apparently refers entirely to interlocutory orders if the expression 'interlocutory order' be given its ordinary meaning, as for example its definition in Wharton's Law Lexicon. But if this is done this qualification of Section 94 in Clause (b) of Section 7 becomes meaningless. It is a general rule of construction that full effect must be given to every word and the words of a Statute must be Construed so as to give a sensible meaning to them, if possible. It is possible to give a sensible meaning to the words 'so far as they relate to injunctions and interlocutory orders' by interpreting them as used in a technical sense and as referring to orders expressly described in the Code itself as injunctions or interlocutory orders. That these words were used in this technical sense by the framers of the Code would appear from the inclusion, of the word 'injunctions' in the sentence. The only injunctions referred to in Sections 94 and 95 are temporary injunctions and these would be included in interlocutory orders if these words, were used in the ordinary sense. This was the view I held in 1918 when I was one of the Judges who decided the case of Kumud Behary Pal v. Hari Charan Sardar 53 Ind. Cas.814 : 46 C. 717 : 31 C.L.J. 179 and I see no reason to change my view as to the principle to be, followed in interpreting Clause (b) of Section 7 of the Code. But now that I have had the advantage of hearing the point more fully argued I think that in applying this principle some modification should be made. My attention has now been drawn to the fact that the words 'if it is so prescribed' at the end of the first sentence in Section 94 render this section inoperative apart from the rules which are contained in the First Schedule to the Code. A reference to the First Schedule makes it easier to give a technical meaning to the words 'injunctions and interlocutory orders.' We there find that Order XXXIX is headed 'temporary injunctions and interlocutory orders' and the order is divided into two parts with separate headings, Rules 1 to 5 being described 'temporary injunctions' and Rules 1 to 10 'interlocutory orders.' It, therefore, appears to me that the meaning to be given to Clause (b) of Section 7, so far as it relates to Section 94, is that the provisions in Order XXXIX of the First Schedule of the Code shall not extend to Provincial Small Cause Courts, but that it does not exclude the extension of the provisions in Order XXXVIII to such Courts. The present Code of Civil Procedure has the effect of making applicable to Small Cause Courts all the provisions of the Code that are hot expressly excluded. I can find nothing in the Code apart from Section 7, which could be interpreted to exclude the application of Order XXXVIII to such Courts. Under Rules 6 and 7 of that order a Court has power to order attachment of immoveable property. I would, therefore, answer the first question referred to the Full Bench, 'Whether a Provincial Small Cause Court has jurisdiction to order an attachment of immoveable property before judgment?' in the affirmative.

57. At the hearing of this Reference my attention was drawn to a point that escaped my notice when delivering judgment in the cases of Kumud Behary Pal v. Hari Charan Sardar 53 Ind. Cas.814 : 46 C. 717 : 31 C.L.J. 179 and Kedarnath Paramanik v. Hem Nath Karmakar 70 Ind. Cas. 841 : 49 C. 994; (1923) A.I.R. (C) 176 that is, that there is a difference between ordering the attachment of property and attaching property. It does not follow that because, as I hold, a Small Cause Court has the power to order the attachment of immoveable property, it has also the power to attach it. From the provisions of Section 36 and Order XXXVIII, Rule 7 of the Code it appears that when it is sought to give effect to an order of attachment before judgment, this must be done in accordance with the provisions of the Code for attaching property in execution of a decree. Since a Small Cause Court is prevented by the provision of Section 7(a)(iii) and Order L of the, Code from executing decrees against immoveable property it would appear that it is equally debarred from executing an order of attachment of immoveable property passed by it. In order to give effect to such an order the assistance of the Civil Court of ordinary jurisdiction would have to be invoked and claims to immoveable property attached under the order of a Small Cause Court would be heard and decided by the attaching Court and not by the Small Cause Court.

58. I would, therefore, answer the second question in this Reference 'whether the case of Kedarnath Paramanik v. Hem Nath Karmakar 70 Ind. Cas. 841 : 49 C. 994; (1923) A.I.R. (C) 176, or the case of Sadek Ali v. Samed Ali : AIR1924Cal193 was correctly decided?' as follows:

59. Having regard to the fact that the power to attach and not the power to order attachment is the subject of these decisions, Kedarnath Paramanik v. Hem Nath Karmakar 70 Ind. Cas. 841 : 49 C. 994; (1923) A.I.R. (C) 176 was wrong and Sadek Ali v. Samed Ali : AIR1924Cal193 was correctly decided.

Mukerji, J.

60. The two questions referred to us for decision are simple enough. They resolve themselves into' the question as to whether Order XXXVIII of the Code of Civil Procedure applies to a Provincial Court of Small Causes. The solution is not quite so simple.

61. The two views that may be taken of the matter and: the arguments in support of them may shortly be summarised thus.

62. Section 17 of the Provincial Small Cause Courts Act (IX of 1887) lays down that the procedure prescribed in the chapters and sections of the Code of Civil Procedure specified in the Second Schedule to that Code shall, so far as those chapters and sections are applicable, be the procedure followed in a Court of Small Causes in all suits cognizable by it and in all proceedings arising out of such suits. Then follows a proviso which need not be considered for our present purpose. Section 5 of the Code of Civil Procedure (Act XIV of 1882) provided that only certain chapters and sections of the Code (all specified in the Second Schedule thereof) were to extend to the Provincial Courts of Small Causes. From that schedule it would appear that the provisions regarding arrest and attachment before judgment (Chapter XXXIV) though made applicable to Provincial Small Cause Courts did not apply to such suits when they related to immoveable property. It is, therefore, quite clear that so long as the Code of 1882 was in force a Provincial Court of Small Causes could not make an order of attachment in respect of any immoveable property before judgment. The scheme of the Civil Procedure Code (Act V of 1908) now in force is entirely different. It does not profess to-lay down which particular provisions of the new Code are to apply to the Provincial Small Cause Courts but simply lays down that certain provisions are not applicable to such Courts. These provisions are to be found in Section 7 and O.L. of the Code and also in Order XVI, Rule 10. and. Order XXI, Rule 82. The two rules last mentioned do not refer to the present question beyond suggesting that the scheme of the Code is to exclude by express mention. Section 7 is divided into two parts. Part (a) is confined to the provisions contained in the body of the Code relating to suits excepted from the cognizance of a Court of Small Causes, to the execution of decrees in such suits and to the execution of decrees against, immoveable property. Part (b) mentions some of the sections of which Sections 9 91 and 92 have obviously no application to a Court of Small Causes, Sections 96 to 112 relate to appeals and Section 115 relates to revision. Part (b) also excludes Sections 94 and 95 'so far as they relate to injunctions and interlocutory orders.' Although all the orders mentioned in Section 94 may in one sense be said to be interlocutory orders, the Legislature intended by the use of the words 'so far as they relate to injunctions and interlocutory orders' in Section 7 to mean only such of them as are specified as such in the Code, that is to say, injunctions and such orders as are said to be interlocutory orders in Order XXXIX of the Code. The precise effect, therefore, of providing for exclusion of the operation of Sections 94 and 95' so far as they relate to injunctions and interlocutory orders' is to exclude in reality orders which come under Clause (c) and (e) of Section 94 and not orders passed under the other clauses of the section. Clause (b) of Section 94 under which a Court can order the attachment of any property is therefore not affected by Section 7. Order L which, specifies the portions of the First Schedule and the rules and orders which shall not extend to Courts constituted under the Provincial Small Cause Courts Act, 1887, or to Courts exercising the jurisdiction of a Court of Small Causes under that Act does not refer to Order XXXVIII at all. Consequently a Provincial Court of Small Causes is competent to make an order of attachment before judgment in respect of immoveable as well as immoveable property.

63. In support of this view it may be urged that the main object of an attachment before judgment is to enable the plaintiff to realise the amount of the decree, supposing a decree is eventually passed, from the defendants' property. It is a step taken merely for the purpose of preventing the debtor from delaying or defeating the enforcement of a decree and thereby obstructing or preventing the creditor from reaping its fruits. Unquestionably that is a much valued right; and so far as immoveable property is concerned the plaintiff enjoyed that right so long as the Code of 1882 was in force. The scheme of the Code of 1908 is radically different from that of the Code of 1882. Unlike the latter it by implication makes the whole Code applicable to Provincial Courts of Small Causes subject to certain express restrictions.

64. For the contrary view the reasoning in substance is this. The rules under Order XXXVIII have been prescribed to enable the Court to make an order for the attachment of any property for preventing the ends of justice from being defeated. Therefore the order is one which comes expressly within the last part of Clause (6) of Section 94 of the Code. An attachment before judgment cannot but be an interlocutory order. The Code does not define what orders are interlocutory and what are not. Order XXXIX only specifies certain classes of interlocutory orders. Something which is done between the commencement and the end of a suit or action, which decides some point or matter which, however, is not a final decision of the matter in issue is known as an interlocutory order. An attachment before judgment is undoubtedly an interlocutory order according to the general acceptance of the expression. Section 94 refers entirely to interlocutory orders in all its clauses, and this is clear also from the wording of Clause (e) which speaks of 'such other interlocutory orders:' Therefore by Section 7 of the Code they are all excluded, and a Provincial Court of Small Causes is no longer competent to make any orders for attachment of property, either immoveable or immoveable, before judgment.

65. The considerations that favour this view are that a Provincial Court of Small Clauses is prohibited by its constitution from entertaining questions of rights in immoveables, and rights to or interests in immoveable property are elaborately excluded from its consideration. It can only go into such questions incidentally, and there is in Section 23 of the Provincial Small Cause Courts Act (IX of 1887) a provision enabling but not making it obligatory for the Court to send the matter for decision to the ordinary Civil Court. A Provincial Court of Small Causes cannot deal with immoveables in execution of its decree, it cannot levy on immoveables, nor can it order the attachment of immoveable property to make a witness to appear. To hold that it is competent to attach immoveable property before judgment will be to open the gates for claims to such property being put in and allow the Court to investigate and decide On them with no right of appeal to the party aggrieved by its decision therein, and to countenance the eventuality of its decision being final if no suit is instituted to establish the right within the time allowed by law. To hold that it is competent to attach immoveables before judgment, when undoubtedly Order XXXIX, Rule 6 which gives the power to order interim sale of immoveables which are subject to speedy and natural decay or which for any other just and sufficient cause it may be desirable to have sold at once, does not extend to the Court--an order under Order XXXIX, Rule 6 being an interlocutory order specified as such in the Code and therefore expressly excluded by Section 7 read with Section 94, Clause (e)--would lead to an anomaly.

66. A close examination of these rival contentions leads us to a position which can scarcely be ignored. To accept the former view would be to hold that the Legislature intended to extend in respect of immoveable property the powers which the Provincial Courts of Small Causes enjoyed with regard to moveables ever since the said Courts came into existence by Act XLII of 1860; to adopt the latter view would be to hold that the object was to take away those powers. There is no escape from this position. It is difficult to imagine that such a salutary power which affords protection to plaintiffs without causing any appreciable inconvenience to defendants--for the proceedings in a Court of Small Causes are meant to be summary, and if the plaintiff fails, the attachment fails under Order XXXVIII, Rule 9, and when there are ample provisions made under Order XXXVIII, Rules 6, 9 and 12 protecting the defendant and also the rights of strangers, and the Code lays down stringent safeguards in the shape of conditions which must be shown to exist before an order can be made under Order XXXVIII, Rule 5--was intended to be taken away without some express words indicating such intention. On the other hand the scheme adopted by repealing Schedule II of Act XIV of 1882 which expressly extended only some of the powers under the Code to Provincial Courts of Small Causes and adopting in the Code of 1908 the other mode of expression, namely, of restricting only the application of some of the provisions specifically mentioned therein, favours the view that the object was to enlarge the powers rather than to limit them.

67. Now it is to be regretted that Section 17 of the Provincial Small Cause Courts Act has not yet been amended as was absolutely necessary on the amendment of the Civil Procedure Code in 1908. The language of the section, as it is, is wholly inapposite. With the repeal of the Code of 1882 and of its Second Schedule the words of Section 17 of the Provincial Court of Small Causes can no longer have any meaning: for though by Section 8 of the General Clauses Act and Section 158 of the Code of Civil Procedure (Act IX of 1908) we have, as far as practicable, to look to the part, Order, section or rule which corresponds to the chapter or section of the earlier Codes, it will be seen that the Code of 1882 excluded the same by express mention whereas the Code of 1908 has restricted them by express mention.

68. There is little doubt that the amendments made by the Code of 1908 in this respect arc anything but satisfactory. An examination of the provisions discloses a want of care and precision which is regrettable in an enactment dealing with procedure so largely in use. It is difficult to reconcile the expression' so far as they relate to injunctions and interlocutory orders.' appearing in section, 7 with the provisions of Section 94 all of which deal with interlocutory orders of one kind or the other. There is a clear ambiguity to the dispel which it is permissible to look to the earlier enactments; but the earlier enactments afford us no real assistance, because in view of the fact upon either view it being admitted that a change has been effected--an extension of the powers to immoveables on the one view and a curtailment of the powers in the case of moveables on the other--it would be impossible, to proceed on the assumption of a supposed policy on the part of the Legislature not to depart from the law as it stood before. A change was intended and has been effected: and judging from the express words of the governing clauses of Section 7 and Order L there is no doubt in my mind that it was intended to extend the whole of the Code to Provincial Courts of Small Causes unless expressly provided for. The provisions of Section 7 have to be reconciled with those of Section 94 and that Can only be done by treating interlocutory orders as meaning only such orders as are expressly said to be interlocutory orders in the Code, that is to say, those that are mentioned in O. 'XXXIX. That the Legislature had this in view is apparent also from the fact that in Section 7 as also in Order XXXIX in junctions are treated as something other than interlocutory orders while in reality they are not so I am of opinion that effect must also be given to the words 'so far as they relate to injunctions and interlocutory orders' appearing in Section 7 even at the risk of restricting the meaning of the expression 'interlocutory orders' in Section 94 to such orders as are mentioned as such in the Code and attributing to the Legislature a redundancy in, the use of the word 'other' in Clause (e) thereof. In my opinion Section 7 only excludes orders passed under Clause (c) and Clause (e) of Section 94 and not under any of the other clauses, thereof. I find it difficult to imagine that if the Legislature intended to deprive the Provincial Courts of Small Causes of the power to order attachment of moveables they could not think of a better way of expressing themselves. I am therefore of opinion that Order XXXVIII has not been excluded either by Section 7 read with Section 94 or by Order L, and that it is applicable to a Provincial Court of Small Causes.

69. It remains now to consider some of the difficulties that are said to follow from the acceptance of this interpretation. The principle that a Court which cannot attach primarily in execution of its decree cannot attach in anticipation of it which was applied in the case of Marthamma v. Kittu Sheragara 6 M.H.C.R. 91 to the Code of 1859 in a case decided under Act XI of 1865 which provided by Section 47 for the application of the provisions of that Code to Provincial Courts of Small Causes 'so far as the same are or may be applicable,' cannot have any appreciable force under the present enactments, the more especially as the immediate objects of the two kinds of attachment are widely different. No doubt a Provincial Court of Small Causes cannot deal with immoveables in execution of its decree, or order a sale of immoveables; nor can it be doubted that it cannot make an order of attachment of immoveable property to compel a witness to appear and that is so because it cannot order the sale thereof. The occasion for the exercise of these powers and the circumstances connected therewith, however, are so different from those relating to the power to order attachment of immoveables before judgment for protecting the plaintiffs' interest, that no analogy can be drawn from the exclusion of those powers. The objection as to the investigation and adjudication of claims, which an attachment may produce, is more substantial, but is there a real difficulty on that ground?

70. Order XXXVIII, Rule 6 says that 'where the defendant fails to show cause why he should not furnish security or fails to furnish the security required, within the time fixed by the Court, the Court may order that the property specified or such portion thereof as appears sufficient to satisfy any decree which may be passed in the suit be attached.' The Court therefore under this rule makes an order that the property be attached. In order to make the attachment or to attach the property this order has got to be executed. Rule 7 says that save as otherwise expressly provided, the attachment shall be made in the manner provided for the attachment of property in execution of a decree. If a Provincial Court of Small Causes makes an order of attachment before judgment in respect of immoveable property the order has to be executed under Section 36 which lays down that 'the provisions of this Code relating to the execution of decree shall so far as they are applicable be deemed to apply to the execution of orders.' Under the provisions of Section 38 and Section 39 Clause (d) the order should be sent to an ordinary Civil Court within the local limits of whose jurisdiction the immoveable property is situate, and that Court should, under the provisions of Order XXI which deals with execution of decrees and orders, proceed to execute it. That Court would then attach the immoveable property in accordance with Rule 54 and investigate the claims, if any, under the provisions of Rule 58 and the subsequent rules.

71. If the above procedure is followed, as I think it must under the Code, the objections as to investigations or adjudications of claims will lose all their force. As to the argument based on the absence of the right of appeal, orders of far greater importance passed by a Provincial Court of Small Causes are also not open to appeal; and in any event the suit itself being expected to be disposed of summarily no appreciable hardship is likely to be caused. As to the non-applicability of Order XXXIX, Rule 6 it seems to be due to an omission on the part of the Legislature. In the Code of 1882 the provision was confined to moveable property which was the subject of a suit; in the Code of 1908 the words 'or attached before judgment in such suit 'were added but no provision was made extending' the application of the rule to Provincial Courts of Small Causes. The matter is not of any great consequence, for I take it that even a Provincial Court of Small Causes can always act under Section 151, Civil Procedure Code, and pass such orders as may be necessary.

72. On the whole, I am of opinion, that Order XXXVIII, Rules 5 and 6 apply to the Provincial Courts of Small Causes and I would therefore answer the first question in, the affirmative. The answer to the second question follows from the answer given to the first one and I would answer it by saying that the case of Kedarnath Paramanik v. Hem Nath Karmakar 70 Ind. Cas. 841 : 49 C. 994; (1923) A.I.R. (C) 176 if it purported to lay down that a Provincial Small Cause Court can attach immoveable property and not merely make an order of attachment thereof, was not correctly decided, nor was the case of Sadek Ali v. Samed Ali : AIR1924Cal193 correctly decided if it meant to lay down that no such order can be passed by a Provincial Court of Small Causes. In conclusion I should like to add that this is a matter to which the attention of the Legislature should be directed as early as possible in order that the defects pointed out above may be remedied.

Chotzner, J.

73. The question referred for the decision of the Full Bench is whether the Provincial Small Cause Court is competent to attach immoveable property before judgment.

74. That question was decided in the affirmative in the case of Kedarnath Paramanik v. Hem Nath Karmakar 70 Ind. Cas. 841 : 49 C. 994; (1923) A.I.R. (C) 176 and in the negative in the case of Sadek Ali v. Samed Ali : AIR1924Cal193 . It may be conceded that while the former Code of Civil Procedure (Act XIV of 1882) was in force, such attachments were beyond the jurisdiction of the Small Cause Court. The procedure prescribed in Section 17 of the Provincial Small Cause Courts Act (IX of 1887) was regulated by the Second Schedule of the Code, which was also in conformity with the provisions of Section 15 of the Act and the Second Schedule appended thereto, whereby all suits relating to immoveable property were comprehensively excluded from the cognizance of the Small Cause Court. Chapter XXXIV of the Code dealt with arrest and attachment before judgment except as regards immoveable property.

75. It has now to be considered what changes have been introduced into the procedure laid down in Section 17 of the Small Cause Court Act by the Code of Civil Procedure (Act V of 1908).

76. It should be premised that no alteration has been made in the wording of the Small Cause Court Act so far as the Second Schedule and Sections 15 and 17 are concerned, though in the case of the latter section it is plainly inapposite. In view, however of Section 158 of the Code, it must be taken to refer to Section 7 and Order L of the Code the schedule to which declares that certain of its provisions do not apply to Small Cause Courts. It will be noticed that in the Code of 1908 the Second Schedule of the Code of 1882 has disappeared, and that no new Schedule has been provided in its place. On the other hand Sections 477. to 490 of the former Code are now with slight modification reproduced in Order XXXVIII, Rules 1-11 while Section 491 reappears (again with slight modification) in Section 95 of the new.

77. Order XXXVIII deals with 'arrest and attachment before judgment.' Rule 1 says: 'Where at any stage of a suit other than a suit referred to in Section 16, Clauses (a) to (d) the Court is satisfied' (to put it broadly) as to any dishonest intention of the defendant in regard to the disposal of his property or person, it may issue a warrant for his arrest.

78. Section 16 lays down the Courts in which suits relating to immoveable property are to be instituted and ex-hypothesi excludes suits which are not cognizable by the Small Cause Court. It' would follow therefore that a Small Cause Court is not competent to arrest a defendant in any suit other than one where the subject-matter is moveable property.

79. Rule 5 says: 'Where at any stage of a suit, the Court is satisfied, that the defendant is about to dispose of his property or remove it from the local limits of the Court, it may direct him to furnish security to produce and place it at the disposal of the Court,' failing which it may, under Rule 6, order it to be attached.

80. Now if it be correct that Order XXXVIII substantially represents Chapter XXXIV of the Code of 1882, there seems to be no good reason for importing into Rule 5 a meaning which was specifically negatived in Section 483 of that Code by extending the jurisdiction of the Small Cause Court to attach immoveable property before judgment.

81. The difficulty in the way of this interpretation lies in the wording of Section 94(b) where the Court may order the attachment of any property and the Small Cause Court seems under Section 7(b) to be given the power of attaching such property before judgment. Section 7 moreover makes certain sections inapplicable and these include Sections 94 and 95 so far as they relate to injunctions and interlocutory orders, but as Rankin, J., points out Section 94 appears to refer entirely to interlocutory orders and even to call them so but the parts of this section intended to be excluded are apparently Clauses (c) and (e).

82. On the other hand powers under Section 94 are only conferred 'if it is so prescribed' and if it is said, that they are so prescribed under Section 7(b), it would seem to be inconsistent with Clause (a) immediately preceding it, which excludes from the jurisdiction of the Small Cause Court so much of the body of the Code as relates to suits excepted from the cognizance of a Court of Small Causes, the execution of decrees in such suits and the execution of decrees against immoveable property.

83. Again Order XVI, Rule 10 prohibits the attachment of immoveable property by a Small Cause Court to enforce the attendance of a witness and Order XXI, Rule 82 forbids the sale of such property by a Court of that description. It would therefore be anomalous that a Court, which has not the power of executing a decree by attachment of immoveable property after judgment, should have the power of attaching such property before judgment.

84. The conclusion, therefore, at which I arrive is that under the Code of 1908 there has been no departure from the principles underlying Chapter XXXIV of the Code of 1882, and that consequently the question referred should be decided in the negative.

85. The result is that the Reference will be answered in accordance with the opinion of the majority of the Judges constituting the Pull Bench, and will therefore be answered in the manner stated in the judgment of the learned Chief Justice.

86. No order is made as to the costs of the Reference. '

87. We direct that a printed copy of the judgments of the Full Bench be forwarded to the Government of India as early as possible.


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