MOHAMMED MASTAN KUNJU MOHAMMED ABDUL KHADAR Vs. MYTHEEN KUNJU PAKIRUMOHAMMED
HIGH COURT OF KERALA
MOHAMMED MASTAN KUNJU MOHAMMED ABDUL KHADAR
MYTHEEN KUNJU PAKIRUMOHAMMED
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(1.) A plot of land belonging to the judgment debtor was sold in execution of the decree in a Small Cause suit. He applied for setting aside the sale under O.21 R.90 of the Code of Civil Procedure, on the ground that the sale was vitiated by illegal and material irregularity. The application was dismissed and the sale was confirmed. This Civil Revision Petition is directed against the order confirming the sale.
(2.) The only ground urged in revision is that the sale was conducted by a Small Cause Court which had no jurisdiction to sell immoveable property in execution and that the sale was therefore illegal. Reliance was placed on S.7 of the Code of Civil Procedure which is extracted below:
The following provisions shall not extend to courts constituted under the Provincial Small Cause Courts Acts, 1887, or under the Berar Small Cause Courts Law, 1905, or to Courts exercising the jurisdiction of a Court of Small Causes under the said Act or law, or to Courts in Part B States exercising a corresponding jurisdiction, that is to say,-
(a) so much of the body of the Code as relates to -
(i) suits excepted from the cogniznace 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:-
S.91 and 92
S.94 and 95 so far as they authorise or relate to:-
(i) orders for the attachment of immoveable property,
(iii) the appointment of a receiver of immoveable property, or
(iv) the interlocutory orders referred to in Clause.(e) of S.94, and S.96 to 112 and 115.
(3.) Under S.15 of the Travancore - Cochin Civil Courts Act XX of 1951, a Court invested with the jurisdiction of a Court of Small Causes with respect to the exercise of that jurisdiction and the same court with respect to the exercise of its jurisdiction in suits of a civil nature which are not cognisable by a Court of Small Causes should for the purposes of the said Act and the Code of Civil Procedure be deemed to be different Courts. It was therefore argued that the Munsiff in the exercise of small cause jurisdiction had to transfer the decree for execution to himself under O.21 R.6 of the Civil Procedure before attaching and selling the property and that such a transfer not having been made in this case the sale should be deemed to have been conducted by the Small Cause Court and was one held without jurisdiction. Although this was the main point urged before us, reference was made to a decision of the Peshwar Court in Sital Ram Kalicharan v. Thakur Das (AIR 1938 Pesh. 70). It was held in that case that a Small Cause decree could not be executed at all against immoveable property and that this could not be circumvented by transferring the decree to a court having regular civil jurisdiction. The Lahore High Court dissented from this view in Jalla Mall v. Motia ( AIR 1941 Lah. 111 ) and held that when a decree was transferred from a Small Cause Court to Court exercising regular civil jurisdiction the latter court could attach and sell immoveable property in execution of such decree. Two earlier decisions of the Lahore Court viz., Sri Ram v. Tulasi Ram (AIR 1929 Lahore 398) and Sukha Mal v. Mahr Din (132 Indian Cases 208) were relied on in Jalla Mall v. Motia. It was also pointed out that the High Courts of Allahabad, Calcutta and Madras had not doubted the proposition that a Small Cause Court was competent to transfer a case to itself on the regular side or to the Court of another regular Judge in order to get its decree executed against immoveable property. All the reported decisions on the point have been considered in the judgment of Blacker, J., in Jalla Mall v. Motia. We do not therefore consider it necessary to cover the same ground. We are in full agreement with the conclusion reached in Jalla Mall v. Motia that where the same Judge holds the office both as the Judge of Small Causes and as Judge on the regular side, he can on the application of the decree holder or otherwise, transfer a Small Cause decree to the regular side for the purpose of obtaining attachment and sale of immoveable property.;
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