K. C. Agarwal, J. - (1.) THESE two connected revisions arise from a judgment dated 14-10-1977. The relevant facts are that the firm M/s. Shiv Shanker Lal Ram Nath, Bara Bazar, Bareilly, filed a suit for ejectment against Gauri Shanker Misra and two others. THESE two others were M/s. Tauamal Salig Ram and M/s. Mehrotra Stores. The suit was decreed on 19-2-1976. The defendants preferred a revision against the said decree of the Judge Small Causes. The revision was also dismissed. In the meantime the execution, which was started by the decree holder by means of an application before the Judge Small Cause Court on 23-2-1976, was taken up. The judgment debtor Gauri Shanker filed an objection to the execution application. As the revision was pressed only on one ground, I need not mention the various grounds which had been raised in the objection. In the objection, the judgment debtor alleged that as the decree passed by the Judge Small Causes was one which could not be executed against an immovable property, the execution was liable to be struck off. The Judge Small Causes rejected the objection on 20-5-1977. Against the aforesaid order, a revision was preferred under Section 25 of the Provincial Small Cause Courts Act by Gauri Shanker Misra to the court of the District Judge. In the revision, the order of the Judge Small Causes was modified, and the objection filed by the judgment debtor was accepted partly. By the said order, the learned First Additional District Judge although held that a decree passed by the Judge Small Causes could be executed by the civil court in the regular side, and directed the same to be sent to * a court of competent jurisdiction under Section 39 of the Code of Civil Procedure. Aggrieved by the aforesaid judgment, both the parties filed revisions in this Court. The revision filed by the decree holder was Revision No. 2580 of 1977, whereas the one which was filed by Gauri Shanker Misra, the judgment debtor, was numbered as Revision No. 2455 of 1977.
(2.) IN Revision No. 2580 of 1977, Sri R. N. Bhalla, appearing for the decree holder, urged that the view of the court below that the decree for ejectment could not be executed by the Judge Small Causes was erroneous. He contended that the decree could be executed by the Judge Small Causes and that there was no necessity to transfer the same for execution to the court of Mupsif in the regular side. At this stage, it appears relevant to discuss in brief some of the provisions of the Provincial Small Cause Courts Act and that of the Code of Civil Procedure which will have bearing on the controversy involved in the present revisions. The Provincial Small Cause Courts Act, 1887, was enacted with a view to provide a speedy and cheep justice to the litigants. Section 15 (1) of the said Act lays down 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 by which the suit is triable. The second Schedule of the Act specifies the suits except from the cognizance of the Court of Small Causes. By U. P. Civil Laws Amendment Act 37 of 1972, the Legislature made a provision for a suit for the possession of immovable property or for the recovery of an interest in such property, but not including a suit by a lessor for the eviction of a lessee from a building after the determination of his lease. As a result of this amendment made by the aforesaid Civil Laws Amendment Act, suits for eviction by a lessor against a lessee became cognizable by the Judge Small Causes. Section 16 of the Provincial Small Cause Courts Act provides for the exclusive jurisdiction of the Small cause Courts in the matters excepted. So far as the question of executing a decree obtained from a Judge Small Causes is concerned, resort will have to be made to the Code of Civil Procedure. Section 7 of the Code of Civil Procedure provides that the following provision shall not extend to Courts constituted under the Provincial Small Cause Courts Act, 1887 : (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 immovable property ; and (b) the following sections, that is to say- Section............so far as they authorise or relate to- (i)..., (ii)..., (iii)..., (iv)..., Section 38, however, confers the power of transfer of a decree laying down that a decree passed by a court may either be executed by itself or it may be sent for execution to another Court. Section 39 of the Code deals with the transfer of decree. The next provision is Section 42, which provides that the transferee court shall have the same powers in executing such, a decree as if it had been passed by itself.
(3.) A review of the provisions of the Provincial Small Cause Courts Act and the Code of Civil Procedure would show that Section 7 (a) (iii) provides that a decree obtained from a Court of Small Causes cannot be executed against immovable property. Sri Raja Ram Agrawal, counsel appearing for the judgment debtor, contended that as a decree for ejectment of a tenant by a landlord is a decree in respect of immovable property, the execution of such a decree is barred by Clause (iii) of Clause (a) of Section / of the code of Civil Procedure. This raises a controversy whether a decree obtained from the Court of Small Causes by a landlord as against his tenant is a decree, the execution of which is sought against immovable property. Sri R. N. Bhalla contended that a decree for ejectment obtained by a landlord as against his tenant is not a decree failing under sub-clause (iii) of Clause (a) of Section 7 inasmuch as a decree obtained by a landlord is for ejectment of a tenant which is sought to be executed through the aid of the Court. The basis of a decree in such a suit is relationship of landlord and tenant and not title. Hence, the execution of a decree by a landlord for ejectment of a tenant could not be considered as execution of decree against immovable property. Reference in this connection was made by Sri R. N. Bhalla to a case of the Maharashtra High Court reported in Brij Mohan v. Tattatraya, 1975 Maharashtra Law Journal 97. It is no doubt true that the aforesaid decision supports the contention of Sri R. N. Bhalla, but a Division Bench of our Court reported in Sarju Prasad v. District Judge Kanpur, AIR 1975 Alld. 13, took a contrary view. In the opinion of the Division Bench, a decree obtained by a landlord as against a tenant was one to which sub-clause (iii) of clause (a) of Section 7 CPC applied. I am bound by the decision of the Division Bench, and, therefore, even if it be correct that some of the aspects found in the Maharashtra case were not brought to the notice of the Division Bench deciding the case before it, that does not take away the efficacy and binding character of the said decision on me. 1 am, therefore, not prepared to accept the argument of the learned counsel for the decree holder that the execution of a decree obtained by a landlord against a tenant is not the execution against immovable property. This concludes Civil Revision No. 2580 of 1977 against the plaintiff. Now the question arises for the second revision. This revision was preferred by the judgment debtor against the direction of the Judge Small Causes that the decree ought to have been sent to the Munsif for execution. The argument advanced by the learned counsel for the judgment debtor is based on Section 39 of the Code of Civil Procedure, as amended by Act No. 104 of 1977. The relevant portion of Section 39 reads as under :- "(1) The court which passed the decree may on the application of the decree holder send it for execution to another Court (of competent jurisdiction). (a)....(b)......(c)...... (2)............... (3) For the purposes of this section, a Court shall be deemed to be a court of competent jurisdiction, if at the time of making the application for the transfer of decree to it, such Court would have jurisdiction to try the suit in which such decree was passed." ;