Decided on September 08,1967



- (1.) This appeal is from an order in execution (satisfying the definition of a decree in S.2(2) of the Civil Procedure Code) made by the Subordinate Judge's Court, Kasaragod on 27 1 1967 and the question is whether the appeal lies to this court or to the District Court, Tellicherry. The suit in which the decree under execution was made, was instituted on 16-12-1954 in the Subordinate Judge's Court, Mangalore. Its valuation was, Rs. 5465/- and as the law then stood an appeal from any decree or order in the suit would have lain to the High Court - see S.13 of the Madras Civil Courts Act, 1873 before its amendment by Madras Act XVII of 1956. The suit was decreed by the Subordinate Judge's Court, Mangalore on 13-9-1956 and the area to which it relates having become part of this State on 1- 11-1956 on its formation by the States Reorganisation Act, and this court having become the High Court for the area, an appeal was filed in this court on 11-2-1957. The appeal was dismissed on 23-11-1961 and execution was thereafter levied in the Subordinate Judge's Court, Kasaragod to which by then the business of the Subordinate Judge's Court, Mangalore, in respect of the area concerned, stood transferred. By the time the decree now under appeal was made, the Kerala Civil Courts Act, 1957 as also its amendment by Act 12 of 59 had come into force. Under S.13 of that Act, as amended, appeals from original decrees and orders of a Subordinate Judge's Court (as distinguished from appellate decrees or orders from which appeals, if they lie at all, lie to the High Court under the provisions of the Civil Procedure Code, and not as meaning, as counsel for the appellant contends, decrees and orders in original suits so that, from an order in execution, the appeal will lie to the High Court under S.12 of the Act even if, from the decree in the suit itself, the appeal lay only to the District Court under S.13) when the value of the subject matter of the suit does not exceed Rs 10,000/- lie to the District Court. The question is whether this section expressly or by necessary intendment takes away the right of appeal to the High Court which vested in the appellant on the institution of the suit.
(2.) I should think it does since the section, by sub-s.(2) thereof, expressly states that its provisions shall apply to original decrees and orders of a Subordinate Judge's Court passed after the commencement of the amending Act of 1959 (and the decree, namely, the order in execution, now under appeal was made after that) notwithstanding that the suits in which such decrees and orders have been passed were instituted before that. Therefore, the section applies to the present case notwithstanding that the suit out of which it arises was instituted before the commencement of the amending Act.
(3.) In Ramunni Kurup v. Chiurtha 1959 KLJ 1424 a division bench of this court invoked S.106 of the Code to make out jurisdiction in this court in what seems to be a similar case, but, as pointed out by another division bench in Narayanamoorthy Konar v. Viswanathan 1963 KLT 471 that section can have no application to an order in execution which satisfies the definition of a decree in S.2(2) of the Code and is thereof not an order as defined by S.2(14). Moreover, I should think that when S.106 speaks of, "the Court to which an appeal would lie from the decree in the suit in which such order was made", it means the court to which such an appeal would lie at the time the appeal against the order is brought, irrespective of whether or not there has been a decree in the suit and where the appeal lay before that time.;

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