PATEL KANTILAL GORDHANBHAI Vs. SOMABHAI PARSHOTTAM PRAJPATI
HIGH COURT OF GUJARAT
PATEL KANTILAL GORDHANBHAI
SOMABHAI PARSHOTTAM PRAJPATI
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(1.) These Revision Applications are filed by the original different judgment-debtors raising the question as to whether a decree passed by the Civil Judge (J.D ) or by the Civil Judge (S.D ) exercising jurisdiction under sec. 28(1) of the Bombay Rent Act could be executed by the Small Causes Court established in that area subsequent to the passing of the Court or whether it should be executed by the very Court that passed the decree namely the Court of the Civil Judge (J.D.) or (S.D.). Out of the above lot Civil Revision Application Nos. 1454/78 and 1158 are directed by the judgment-debtors against the respective order of the Civil Judge (J.D.) and the Small Causes Court Surat holding that it has jurisdiction to entertain these Execution Applications. In the rest of the matters the executing Court as well as the Appellate Court has taken the view that the executing court namely the Small Causes Court of Baroda has got jurisdiction to entertain the Execution Applications. Both at Baroda and Surat the Small Causes Court came to be established for the first time on 14th July 1975 Till then the Civil Judge (S.D.) assisted by the Civil Judge (J.D.) was exercising jurisdiction under sec. 28(1) of the Bombay Rent Act. In all these Revision Applications decrees had come to he passed by the Civil Judge (J.D.) prior to 1975 When the Small Causes Court came to be established at Baroda and at Surat the Execution Applications that were pending before the Civil Judge (J.D.) came to be transferred by the District Judge administratively to the file of the newly established Small Causes Court at Baroda and Surat. In ali these matters the judgment-debtors contended that as the decrees were passed by the Civil Judge (J.D.) the only Court that could execute the decree would be the Court of the Civil Judge (J.D.) and not the Court of the Small Causes. As said by me above this contentions of the judgment-debtors was not accepted except by one Judge of Surat and hence the matters have been brought by judgment decrees to this Court for their final decision.
(2.) Section 98(1) of the Bombay Rent Act deals with the jurisdiction of the Courts in respect of recovery of rent or possession of any premises to which any of the provisions of this part apply. The said sec. 28 is reproduced below:-
"28. (1) Notwithstanding anything contained in any law and notwithstanding that by reason of the amount of the claim or for any other reason the suit or proceeding would not but for this provision be within its jurisdiction ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... (a) in the City of Ahmedabad the Court of Small Causes of Ahmedabad (aa) in any area for which a Court of Small Causes is established under the Provincial Small Cause Courts Act 1887 such Court and (b) elsewhere the Court of the Civil Judge (Junior Division) having jurisdiction in the area in which the promises are situate or if there is no such Civil Judge the Court of the Civil Judge (Senior Division) having ordinary Jurisdiction shall have jurisdiction to entertain and try any suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of any premises to which any of the provisions of this part apply and to decide any application made under this Act and to deal with any claim or question arising out of this Act or any of its provisions and (subject to the provisions of sub-sec. (2)) no other Court shall have jurisdiction to entertain any such suit proceeding or application or to deal with such claim or question."
(3.) The Court below except one Civil Judge (J.D.) at Surat interpreted sec. 28(1) to suggest invariably that the execution proceedings between a landlord and a tenant which relate to the recovery of rent or possession of any permises to which Part II of the Bombay Rent Act applies are proceedings covered by sec. 28(1) of the Act and therefore the Court of the Civil Judge (.J.D.) or the Civil Judge (S.D.) had their jurisdiction ousted by virtue of the latter part of sec. 28(1). Sec. 28(1) deals with three sorts of legal proceedings. They are:
(1) A suit between a landlord and a tenant relating to the recovery of rent or possession of premises * * * * * * * * * * only to execution proceedings and other allied proceedings relating to the recovery of possession or rent. No other considerable fourth category can be there. So it is inevitable to hold that the term proceeding occurring in the above-quoted sub-sec. (1) has got reference to execution proceedings.;
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