BALEKKALA SUBRAYA BHATTA Vs. NULIYAL GOVINDA BHAT

JUDGEMENT

(1.) The suit out of which this second appeal arises was dismissed by the trial Court but decreed on appeal.

(2.) Defendant 1 is the appellant. He is the assignee from one Gowaramma of her rights 1950 M/5 & 6 under a certain maintenance decree obtained by her in a pauper suit filed by her. The present plaintiff was defendant 1 and the present defendants 2 and 3 were also defendants 2 and 3 in that suit, In and by the final event and result of that litigation evidenced by Ex. P-3 dated 18th August 1941, the present plaintiff was completely exonerated from the suit and the suit dismissed as against him. Gowaramma was directed to pay half the court-fee due to Government and defendants 2 and 3 the other half "if not already recovered by the Government in terms of the prior decrees passed in this suit." Page 1 of 3 Balekkala Subraya Bhatta vs. Nuliyal Govinda Bhat (22.07.1949 - MADHC) 6/19/2007 Plaintiff in the present case is seeking to recover back the amount paid by him to Government under a decree passed in the course of the former litigation (EX. P-1) on 9th March 1940 which became superseded by a later decree (Ex. P-3) on 18th August 1941 passed pursuant to the order of remand made on appeal in, Ex. P-2, on 19th February 1941.

(3.) To this second appeal objection is taken in limine that Section 102, Civil P. C. bars it. The appellant in reply contends that the suit out of which this second appeal arises is not of the nature cognizable by a Court of Small Causes, because it is excepted from the cognizance of such a Court as a suit falling within Article 2 of Schedule 2, Provincial Small Cause Courts Act which relates to a suit concerning an act purporting to be done by any person in pursuance of a judgment or order of a Court or of a judicial officer acting in the execution of his office. The question is : whether this suit concerns an act purporting to be done by any person in pursuance of a judgment or order of a Court. Mr. Srinivasa Rao insists that it is, because it concerns the act of payment of courtfee done by the plaintiff in pursuance of a judgment later reversed. The language of the article by its apparent generality does no doubt lend some support to this contention of the appellant. But as the decision of a Bench of the High Court of Calcutta in Prasanna Kumar v. Umar Gharan, 1 C. W. N. 140 to which my attention has been drawn by Mr. K. P. Adiga for the respondent points out in terms which accurately expresses my own first impression of the scope and intention of the Article: "having regard to the position of Article 2, and also to the fact that there are many other articles dealing with suits against persons in regard to actions taken by them under the authority of judgments or orders which they have obtained as suitors, Article 2 refers to acts done by persons not acting as suitors in pursuance of a judgment or order which gives permission so to act, but as ministerial officer or otherwise obeying the order of the Court." Mr. Srinivasa Rao in answer to this criticism referred to a decision of Ramesam J. in Kuthala Mudaliar v. Venkata Reddiar, A. I. R. (14) 1927 Mad. 253 : (98 I. C. 726) in which it was held that a suit by an auction purchaser at a sale of the ryot's holding for arrears of rent held under the Madras Estates Land Act for refund of the purchase-money paid on the ground of dispossession from the property under the orders ox the Collector is outside the cognizance of the Court of Small Causes. There was no act in that case done by a suitor under the order of the Collector to which the suit related. The act with which the Court in that case was concerned was the order of the Collector setting aside the sale which was made without notice to the auction purchaser. Here the essence of the action relates to the payment by the plaintiff himself as a mere suitor, i. e., as the defendant in the former suit of a certain sum of money to Government under a decree later superseded. The suit in the present case is not, in my opinion, outside the jurisdiction of a Court of Small Causes and its value does not exceed Rs. 500.