The Judgment of the Court was delivered by

Janaki Amma, J.:— The petitioner in C.R.P No. 583 of 1980 is M/s. Joshi Trading Company (Pvt.) Ltd., in liquidation, represented by the official liquidator, Bombay High Court. The petition is filed against the order of the subordinate judge, Cochin, allowing execution of the order for eviction passed in R.C.P No. 27 of 1978 of the Rent Control Court, Cochin.

2. The building involved is owned by the first respondent in C.R.P No. 583 of 1980, who is the sole respondent in C.R.P No. 839 of 1980. The building is alleged to have been let to M/s. Joshi Trading Company P. Ltd. on a rent of Rs. 3,000. The petition, R.C.P No. 27 of 1978, was filed on February 13, 1978 on the ground that the tenant, who was the first respondent therein, defaulted to pay rent from December 1, 1976, and sublet the building to respondents 2 to 4. The fifth respondent in the petition was the official liquidator. Respondents 1 and 5 did not contest the petition. Respondents 2 to 4 filed objections denying the sub-lease and setting up an arrangement under which they had paid rent to the first respondent. The third respondent also contended that the petition was not maintainable without the sanction of the liquidation court. During the pendency of the petition, respondents 2 and 3 entered into a compromise with the petitioner and agreed to an order for eviction of the portion in their possession on condition that they would be given a fresh lease on terms mentioned in the compromise. Since the petitioner confined his claim for an order for eviction on the ground of arrears of rent, the question whether there was a sub-lease in favour of respondents 2 to 4 was not gone into. An order for eviction was passed on the ground of arrears of rent. The landlord filed E.P No. 262 of 1978 in the Munsiff's Court, Cochin, for delivery of the building. Respondents 4 and 5 challenged the order for eviction, on the ground that it had no validity since sanction of the liquidation court had not been obtained as contemplated in s. 446 of the Indian Companies Act. The fifth respondent further contended that the order for eviction was null and void and the court had no jurisdiction to execute the order in view of s. 537 of the Companies Act. The munsiff upheld the objection and held that failure to obtain the previous sanction of the Bombay High Court to initiate the proceedings under s. 446 of the Companies Act, was fatal and, in the absence of sanction, the order for eviction was not executable. The landlord preferred a revision petition before the subordinate judge, Cochin, under s. 14 of the Kerala Buildings (Lease and Rent Control) Act. The subordinate judge held that there was no necessity for getting the sanction of the company court and, therefore, the order for eviction was liable to be executed. It is this order that is challenged in the two revision petitions.

3. As the contention of the petitioners mainly centres round the scope and applicability of s. 446(1) to the facts and circumstances of the case, it will be advantageous to quote the section. The section reads:

“446. Suits stayed on winding up order.—(1) When a winding up order has been made or the official liquidator has been appointed as provisional liquidator, no suit or other legal proceeding shall be commenced, or if pending at the date of the winding-up order, shall be proceeded with against the company, except by leave of the court and subject to such terms as the court may impose.

(2) The court which is winding up the company shall, notwithstanding anything contained in any other law for the time being in force, have jurisdiction to entertain, or dispose of—

(a) any suit or proceeding by or against the company;

(b) any claim made by or against the company (including claims by or against any of its branches in India);

(c) any application made under section 391 by or in respect of the company;

(d) any question of priorities or any other question whatsoever, whether of law or fact, which may relate to or arise in course of the winding up of the company;

whether such suit or proceeding has been instituted or is instituted, or such claim or question has arisen or arises or such application has been made or is made before or after the order for the winding up of the company, or before or after the commencement of the Companies (Amendment) Act, 1960.

(3) Any suit or proceeding by or against the company which is pending in any court other than that in which the winding up of the company is proceeding may, notwithstanding anything contained in any other law for the time being in force, be transferred to and disposed of by that court.

(4) Nothing in sub-section (1) or sub-section (3) shall apply to any proceeding pending in appeal before the Supreme Court or a High Court.”

4. It is apposite to mention at this stage that sub-s. (1) corresponds to s. 171 of the Indian Companies Act, VII of 1913. Sub-sections (2) to (4) were not then in the earlier Act.

5. There is no dispute that in the instant case, the eviction proceedings were initiated before the rent control court after the official liquidator was appointed as the provisional liquidator by the Bombay High Court in Company Petition No. 1 of 1978. The argument put forward is that the petition before the rent control court, viz., R.C.P No. 27 of 1978, came under the purview of “other legal proceeding” in s. 446(1) and, therefore, leave of the winding-up court should have been obtained. There is no case for the respondent-landlord that leave has been obtained.

6. The expression “other legal proceeding” came up for interpretation in Governor-General in Council v. Shiromani Sugar Mills Ltd. (In liquidation) [1946] 14 ITR 248 : 16 Comp Cas 71 (FC). In that case, the company was ordered to be wound up on 17th April, 1942. Prior to that day, the official liquidator was appointed as provisional liquidator. After the winding up order, the I.T department sent an “arrear demand” to the official liquidator and thereafter proceeded to recover the income-tax dues as arrears of land revenue. The official liquidator contended among other things that the proceedings were bad as leave of the court as contemplated in s. 171 of the Indian Companies Act, 1913, had not been taken. The court held that no narrow construction should be placed upon the words “or other legal proceedings” and the words could and should cover distress and execution proceedings in the ordinary courts and that proceedings taken elsewhere than in an ordinary court of law, provided that it be taken in the manner prescribed by law or legal enactment, could properly be described as a “legal proceeding”. The court observed [1946] 16 Comp Cas 71, 79:

“If it be considered that the effect of the income-tax authorities putting the machinery of section 46 of the Income-tax Act in motion for the collection of arrears of income-tax is to bring into operation all the appropriate legal enactments relating to the collection of land revenue in the Province concerned, it is, in our judgment, very difficult to say that they are not taking a ‘legal proceeding’.”

7. It was, therefore, held that the appellant should have applied in the liquidation under s. 171, Indian Companies Act, for leave of the winding up court.

8. It is a well-known matter that the object of s. 446 is to see that the assets of the company are brought under the control of the winding up court, to avoid wherever possible expensive litigation and to see all matters in dispute which are capable of being expeditiously disposed of by the winding up court are taken up by that court. This does not, however, mean that all disputes wherein a company is involved should be proceeded with only by the company court or that if they are pending with other statutory bodies, leave of the company court should be obtained. Matters where collection or distribution of assets are not involved, those which are outside the purview of the winding-up court and other courts of law and those which are within the exclusive jurisdiction of other statutory bodies may not come under the purview of s. 446. Thus, it has been held in M.K Ranganathan v. 1. Government Of Madras, [1955] 25 Comp Cas 344 (SC), that a secured creditor who falls outside the purview of the winding-up court, who has the right to realise his security by sale of the mortgaged premises, need obtain leave of the court under s. 171 of the Act of 1913 only when intervention of a court is sought. A sale by the receiver of the trustees appointed by mortgagee-debenture-holders without leave of the winding up court was upheld in that case.

9. The Supreme Court had occasion to consider the scope of s. 446 in Damji Valji Shah v. LIC of India, [1965] 35 Comp Cas 755 (SC). The Vishwabharati Insurance Company, which was a composite insurer, passed a resolution on 6th January, 1956, transferring an amount of Rs. 82,000 from the life insurance fund to the general department, probably in anticipation of the impending legislation in relation to the life insurance business. The Life Insurance (Emergency Provisions) Ordinance, 1956, was promulgated on 19th January, 1956, and this was followed by the Life Insurance Corporation Act, 1956. Section 15 of the Act empowered a Tribunal constituted under s. 17 to decide whether a particular transfer of fund from the life department of an insurance company to the general department was without consideration and the transfer was not reasonably necessary for the purpose of the controlled business of the company. Section 41 excluded the jurisdiction of the civil court to adjudicate on matters which the Tribunal was empowered to decide. The Tribunal on an application under s. 15 directed the payment of Rs. 82,000 to the Corporation. The objection that the company being under liquidation, leave of the winding-up court was necessary was overruled. When the matter ultimately came before it, the Supreme Court held that in view of s. 41 of the Life Insurance Corporation Act the company court had no jurisdiction to entertain and adjudicate upon any matter which the Tribunal was empowered to decide or determine under that Act and that s. 446(1) had no application in respect of proceedings before the Tribunal.

10. In S.V Kondaskar v. V.M Deshpande, [1972] 42 Comp Cas 168 : 83 ITR 685 (SC), while winding up proceedings of the Colaba Land and Mills Co. Ltd. (in liquidation) was pending, the concerned ITO issued notices proposing to reopen the assessment of the company and to reassess it in respect of a period prior to such winding up. The question arose whether notices of reassessment were legal proceedings within the meaning of that phrase in s. 446(1) of the Companies Act, and if so, since the ITO had exclusive jurisdiction to make reassessment, whether leave of the company court under s. 446(1) was necessary. The Supreme Court confirmed the decision of the Bombay High Court, which is reported in Colaba Land and Mills Co. Ltd., In re: V.M Deshpande v. V.S Kondaskar, [1970] 40 Comp Cas 1065 : 78 ITR 584, and held ([1972] 42 Comp Cas 168, 180-81):

“While holding these assessment proceedings the Income-tax Officer does not, in our view, perform the functions of a court as contemplated by section 446(2) of the Act. Looking at the legislative history and the scheme of the Indian Companies Act, particularly the language of section 446 read as a whole, it appears to us that the expression ‘other legal proceeding’ in sub-section (1) and the expression ‘legal proceeding’ in sub-section (2) convey the same sense and the proceedings in both the sub-sections must be such as can appropriately be dealt with by the winding-up court. The Income-tax Act is, in our opinion, a complete code and it is particularly so with respect to the assessment and reassessment of income-tax with which alone we are concerned in the present case. The fact that after the amount of tax payable by an assessee has been determined or quantified its realisation from a company in liquidation is governed by the Act because the income-tax payable also being a debt has to rank pari passu with other debts due from the company does not mean that the assessment proceedings for computing the amount of tax must be held to be such other legal proceedings as can only be started or continued with the leave of the liquidation court under section 446 of the Act. The liquidation court, in our opinion, cannot perform the functions of Income-tax Officers while assessing the amount of tax payable by the assessees even if the assessee be the company which is being wound up by the court. The orders made by the Income-tax Officer in the course of assessment or reassessment proceedings are subject to appeal to the higher hierarchy under the Income-tax Act. There are also provisions for reference to the High Court and for appeals from the decisions of the High Court to the Supreme Court and then there are provisions for revision by the Commissioner of Income-tax. It would lead to anomalous consequences if the winding-up court were to be held empowered to transfer the assessment proceedings to itself and assess the company to income-tax. The argument on behalf of the appellant by Shri Desai is that the winding-up court is empowered in its discretion to decline to transfer the assessment proceedings in a given case but the power on the plain language of section 446 of the Act must be held to vest in that court to be exercised only if considered expedient. We are not impressed by this argument. The language of section 446 must be so construed as to eliminate such startling consequences as investing the winding-up court with the powers of an Income-tax Officer conferred on him by the Income-tax Act, because, in our view, the Legislature could not have intended such a result.”

11. A similar reasoning was adopted in B.V John v. Coir Yarn and Textiles Ltd., [1960] 30 Comp Cas 162 (Ker), which related to proceedings under the Industrial Disputes Act. Raman Nayar J., as he then was, held that a suit or proceeding for which leave is necessary under s. 446(1) must be a suit or proceeding capable of being withdrawn and disposed of by the winding up court.

12. The decision in Official Liquidator, Swaraj Motors (P.) Ltd. v. ITO, [1972] 42 Comp Cas 96, 102 : 84 ITR 363, 369 (Ker) also relates to proceedings regarding reassessment and imposing penalty under the I.T Act in respect of a company in liquidation. Isaac J. held that s. 446(1) of the Companies Act would apply only to a legal proceeding in respect of a matter which the company court has got jurisdiction to entertain and dispose of and that those matters are enumerated in sub-s. (2) of s. 446. The learned judge observed:

“The object of sub-section (1) is to prohibit the initiation or continuance of any suit or legal proceeding in respect of such a matter in any other forum without the leave of the winding-up court. If such a prohibition is not enacted in the light of the jurisdiction conferred on the winding-up court by sub-section (2) of section 446, there would be conflict of proceedings and conflict of decisions. Sub-section (1) is intended to avoid such a situation; and it confers the ultimate control in the matter on the winding-up court which is entrusted with the function of collecting and distributing the assets of the company according to law.

Applying the above principle, it follows that an assessment or reassessment proceeding or a proceeding to impose penalties under the Income-tax Act does not fall within the ambit of sub-section (1) of section 446 of the Companies Act, 1956, as such a proceeding does not come under sub-section (2) of the above section, while sub-section (1) would apply to a claim for arrears of income-tax or any other amount by way of penalty or otherwise, as such a claim falls under sub-section (2).”

13. A Division Bench of the Calcutta High Court held in Mukerjee (S.N) v. Krishna Dassi, [1933] 3 Comp Cas 269, that s. 171 of the Indian Companies Act, 1913, was intended to safeguard the company's assets against wasteful and expensive litigation in regard to matters which are capable of determination more expeditiously and more cheaply in the winding up and that the provision is not meant to override s. 145 of the Cr. P.C which empowers the criminal court to enquire into claims as regards actual possession. The Division Bench decision in Price (R.G.N), Offl. Liq., Andhra Paper Mills Co. Ltd. v. M. Chandrasekharan, [1951] 21 Comp Cas 251 (Mad) went to the extent of saying that s. 171, Indian Companies Act, 1913, had no application to enquiries, investigations and orders made either by Government or statutory bodies in exercise of statutory powers.

14. The Kerala Buildings (Lease and Rent Control) Act confers exclusive jurisdiction on the rent control court under s. 5 to determine fair rent of buildings coming under the purview of the Act and under s. 11 to order eviction of tenants on grounds mentioned therein. Though an appeal lies to the subordinate judge, the appellate authority functions as persona designata. Thus, the statute confers power on a hierarchy of officers to discharge functions, which are statutory and exclusive. The winding-up court is not expected to discharge them. It is also significant that a proceeding for eviction not being a proceeding pending in a court is not liable to be transferred and disposed of under s. 446(3) of the Companies Act. Adopting the reasoning in S.V Kondaskar v. V.M Deshpande, [1972] 42 Comp Cas 168 (SC), a proceeding for eviction not being a proceeding which can be appropriately dealt with by the winding-up court, does not come under the category of “other legal proceeding” in s. 446(1), and, therefore, no leave of the winding-up court was necessary for proceeding with R.C.P No. 27 of 1978, filed against the company in liquidation.

15. It is only appropriate at this stage to refer to the decision of Rama-swami J. in T.V Purushottam & Co. v. Subhodaya Publications Ltd., [1955] 25 Comp Cas 49 (Mad), a case which related to fixation of fair rent under the Madras Buildings (Lease and Rent Control) Act, 1951. The court held that it was within the exclusive jurisdiction of the Rent Controller to fix fair rent and no order could be passed by the winding-up court. The matter arose in connection with an application for leave under s. 171 of the Indian Companies Act, 1913. The contention that in cases of the nature no leave was required has not been raised in the case. The question that was mooted was whether leave should be granted to continue the proceedings before the Rent Controller or whether it should be transferred to the winding up court. The case arose under the Indian Companies Act of 1913, which did not contain provisions like those in sub-ss. (2) to (4) of s. 446 of the Act now in force. The court had no occasion to consider the reasoning adopted in S.V Kondaskar v. V.M Deshpande, [1972] 42 Comp Cas 168 (SC), and the other cases already referred to.

16. The decision in In re Osier Electric Lamp Manufacturing Co. Ltd. (in liquidation), [1967] 37 Comp Cas 306 (Cal) arose in connection with an application for leave under s. 446 of the Companies Act. The case related to proceedings under the Bombay Rents, Hotel and Lodging House Rates Control Act, the provisions of which are different from those of the Kerala Buildings (Lease and Rent Control) Act. Section 28 of the Bombay Act provided for filing of suits in specified courts which were conferred jurisdiction to entertain them. What the Calcutta High Court held was that in such cases the concerned court and the winding up court had concurrent jurisdiction, and, therefore, taking into account the convenience of parties leave to file the suit in the Bombay court should be given. The reasoning has no application to the facts of the present case.

17. Assuming that the petitioner in R.C.P No. 27 of 1978 should have obtained leave of the court under s. 446(1) of the Companies Act, the further question is whether the order granting eviction is void or is a nullity. No doubt there are certain observations in B.V John v. Coir Yarn and Textiles Ltd., [1960] 30 Comp Cas 162 (Ker), to the effect that proceedings in violation of the prohibition under s. 446(1) are void. The question did not arise for consideration in that case since the conclusion of the court was that the proceedings before the Industrial Tribunal did not require leave of the court. It is noted in this connection that a provision relating to the obtaining of leave of the winding-up court to commence or proceed with actions exists under the English law. The following passage in Halsbury's Laws of England, 4th Edn., para. 1365, clarifies the law:

“When a winding-up order has been made or a provisional liquidator has been appointed then except by leave of the court and subject to such terms as it may impose, no action or proceeding may be proceeded with or commenced against the company by a person capable of proving the winding up ………. The court will set aside a judgment obtained without its leave after a winding-up order has been passed.”

18. That the judgment has to be set aside by the court would only show that it is not null and void due to want of leave of the company court. There are intrinsic materials in the Companies Act itself which makes out that a judgment obtained without leave of the company court is not null and void. A comparison of s. 446(1) with s. 537(1) will support the above conclusion. Section 537(1) states:

“Where any company is wound up by or subject to the supervision of the court—

(a) any attachment, distress or execution put in force, without leave of court, against the estate or effects of the company, after the commencement of the winding up; or

(b) any sale held, without leave of the court, of any of the properties or effects of the company after such commencement;

shall be void.”

19. When it is mentioned in s. 446(1) that leave of the winding-up court should be obtained for the commencement and continuance of proceedings, and it is further stated in s. 537 that certain of the proceedings taken without leave are null and void it follows that in other cases absence of leave may not have the effect of making the proceedings non est. The principle underlying the maxim expressio unius est exclusio alterius is applicable in such cases. It follows that absence of leave in cases not covered by s. 537 would only make the proceedings voidable and the person to safeguard whose interest the provision is incorporated should get the proceedings declared as not affecting his interest. See Roopnarain Ramchandra Private Ltd. v. Brahmapootra Tea Co. (India) Ltd., AIR 1962 Cal 192.

20. In State of Bihar v. Syed Anisur Rahman, [1977] 47 Comp Cas 372 (Pat), the State of Bihar had been paying amounts as per orders of court in discharge of three compromise decrees obtained against a company. It so happened that the company had gone into liquidation prior to the passing of the compromise decree as per order of the Calcutta High Court and an official liquidator had been appointed. Since no leave of the winding up court had been obtained, the State of Bihar moved the concerned court to withhold further payment. That court refused to do so. Nand Lall Untwalia C.J of the Patna High Court confirmed the decision. The learned judge observed (p. 374):

“It is also to be pointed out that a company does not lose its corporate character and legal entity merely because it has gone into liquidation under orders of a court or a voluntary one. The corporate status and legal entity of the company remains. Decrees could be passed against the company and so also compromise decrees. It was for the official liquidator of the company to get rid of the compromise decrees and bring the debts due from the State of Bihar to the company in the common pool.” No step seems to have been taken by the official liquidator to avoid the compromise decrees. The State as a debtor cannot object to the payment of the money on the ground of the proceedings being bad under section 446 of the Companies Act.”

21. The Patna High Court also held in N.K Banerji… v. State Of Bihar…., [1969] 39 Comp Cas 1023, that if a suit is continued without leave obtained under s. 446 of the Companies Act, the decree passed in such a case is not void but voidable at the instance of the liquidator. For the reasons recorded already, I respectfully agree with the above view and hold that absence of leave only makes the decree or order passed in the proceedings voidable at the instance of the liquidator and not void.

22. In Bansidhar Shankarlal v. Mohd. Ibrahim, [1971] 41 Comp Cas 21 (SC), the Supreme Court held that failure to obtain leave under s. 171 of the Indian Companies Act, 1913, does not entail the dismissal of a suit or proceeding, and the suit or proceeding may be regarded as ineffective until leave is obtained, but once leave is obtained the proceeding would be deemed to be instituted on the date of granting leave. The effect of a decree obtained without leave, whether it is void or voidable at the instance of the official liquidator, is not seen considered in that decision.

23. In the present case, the official liquidator was impleaded as the fifth respondent in the proceedings for eviction before the rent control court. He did not appear and contest the proceedings. Under s. 437 of the Companies Act, it was open to him to obtain sanction of the court and defend the proceedings. The decision in Nazir Ahmad v. Official Liquidator, Peoples Bank of Northern India Ltd., [1943] 13 Comp Cas 1 (Lah) [FB], contains the following quotation from Mr. Solomon Judah's Commentary on a similar provision in the English Act (pp. 3 & 4):

“Whenever proceedings are commenced without leave, the proper course for the liquidator is to apply to the court for stay of the proceedings, and not to plead the omission to obtain leave as a bar to the further maintenance of the proceedings, as in practice, the section has always been worked out by applying to stay the proceedings.”

24. It is interesting to note in this connection that the Madras High Court in Krishnamachariar v. Hanuman Bank Ltd., [1963] 33 Comp Cas 543, has taken the view that in a case where the liquidator had notice of an execution sale and obtained adjournment of the sale his conduct amounted to waiver and the execution sale held could not be held to be affected by the provisions of either s. 171 or s. 232 of the old Companies Act (corresponding to s. 446 and 537 of the new Act). Whether the effect of waiver would amount to admission of the claim need not be considered here since the liquidator has not taken any steps to have the order of eviction vacated on the ground of absence of leave. Having allowed the rent control court to pass an order of eviction with himself on record, it is not open to the liquidator to raise objections in execution, without getting that order vacated.

25. On behalf of the revision petitioner in C.R.P No. 839 of 1980, an objection has been raised that the order of the subordinate judge. Cochin, has to be set aside since that court had no jurisdiction to entertain the revision petition against the order of the mu???siff in execution of the order of eviction. The objection is based on the interpretation of the words “the court to which appeals ordinarily lie against the decision of the said munsiff” in the proviso to s. 14 of the Kerala Buildings (Lease and Rent Control) Act. It is relevant in this connection to extract s. 14 of the Act. It reads:

“14. Execution of orders.—Every order made under section 11 or section 12 or section 13 or section 19 or section 33 and every order passed on appeal under section 18 or on revision under section 20 shall, after the expiry of the time allowed therein be executed by the munsiff or if there are more than one munsiff, by the Principal Munsiff having original jurisdiction over the area in which the building is situated as if it were a decree passed by him:

Provided that an order passed in execution under this section shall not be subject to an appeal but shall be subject to revision by the court to which appeals ordinarily lie against the decision of the said munsiff.”

26. The argument is that under s. 13 of the Kerala Civil Courts Act, appeals from decisions of the munsiff ordinarily lie to the district court and, therefore, the court competent to entertain a revision petition against the order in execution of the order of a rent control court is the district court. The above contention is countered by the respondent by referring to the proviso to s. 13, which authorises the High Court to direct, with the approval of the Government, that appeals from the decrees and orders of munsiff's courts within the local limits of a subordinate court be preferr???d in that court. Section 13 reads:

“13. Appellate jurisdiction of district court and subordinate judge's court.—(1) Appeals from the decrees and orders of a Munsiff's Court and where the amount or value of the subject-matter of the suits does not exceed ten thousand rupees from the original decrees and orders of a subordinate judge's court shall, when such appeals are allowed by law, lie to the district court:

Provided that whenever a subordinate judge's court is established in any district at a place other than the place where the district court is stationed, the High Court may, with the approval of the Government, direct that appeals from the decrees or orders of munsiff's courts within the local limits of the jurisdiction of such subordinate judge's court be preferred in such subordinate judge's court:

Provided further that the district court may remove to itself from time to time appeals so preferred and dispose of them itself or may, subject to the orders of the High Court, refer any appeals from the decrees and orders of munsiff's courts preferred in the district court to any subordinate judge's court within the district.”

27. It is not disputed that a notification has been issued under the proviso to the effect that appeals against the decrees and orders of the munsiff's court, Cochin, are to be filed before the subordinate judge. Cochin. The argument is that once a notification is issued all appeals from the decrees and orders of the munsiff are to be filed before the subordinate judge and, therefore, the subordinate judge's court should be taken to be the court to which appeals ordinarily lie against the decrees of the munsiff. This interpretation has been accepted by the Madras and Patna High Courts in relation to interpretation of a similar expression in s. 195 of the Cr. PC, 1898.

28. In the Madras State, notifications have been issued under the Civil Courts Act empowering the subordinate judge of courts situated in places different from the seat of the district court to receive appeals direct from the decision of the munsiffs within their jurisdiction. In Boddu Ramayya v. Chitturi Surayya, AIR 1916 Mad 1105, the question arose regarding the interpretation to be given to the words “a court to which appeals ordinarily lie” in s. 195(3) of the Cr. PC. It was held by a Division Bench that all subordinate judges who have been empowered by a notification to entertain civil appeals will be courts to which appeals ordinarily lie under s. 195 of the Cr PC.

29. The Bengal, Agra and Assam Civil Courts Act, 1887, under s. 3 provided for four classes of civil courts which include the court of the additional district judge. The additional district judges are to discharge such functions as the district judge may assign. Appeals are ordinarily filed before the district judge. But under s. 21(3) the district judge is empowered to assign the function of receiving appeals against decisions of the munsiffs to the additional district judge. In Chathurbhuj Ojha v. King, AIR 1950 Pat 567, it has been held that where there was such assignment of the function, the additional district judge is a court to which appeals from munsiff's decisions ordinarily lie.

30. The above reasoning, no doubt, is available in interpreting the proviso to s. 14 of the Kerala Buildings (Lease and Rent Control) Act. But the Supreme Court is seen to have given a different interpretation to the expression “the court to which appeals ordinarily lie” in s. 195(3), while deciding the case, Kuldip Singh v. State of Punjab, AIR 1956 SC 391. That case arose under the Punjab Courts Act, 1918. Section 18 of the Act provides the classes of courts. Section 26 empowers the High Court to fix the jurisdiction to be exercised in civil suits as regards value by any person appointed to be subordinate judge, by including him in a class or otherwise. Sections 29 and 30 authorise the High Court to confer certain additional powers and jurisdiction. Under s. 39, where the value of the subject-matter does not exceed four thousand rupees, appeals lie to the district court and in every other case to the High Court. Under s. 39(3) the High Court is empowered to direct by notification “that appeals lying to the district court from all or any of the decrees or orders passed in an original suit by any subordinate judge shall be preferred to such other subordinate judges as may be mentioned in the notification. When that is done such subordinate judge is to be deemed to be a district court for the purposes of all appeals so preferred”. By virtue of this provision the High Court issued direction that appeals lying to the district courts from decrees or orders passed by any subordinate judge in two specified classes of cases “shall be preferred to the senior subordinate judge of first class exercising jurisdiction within such civil court”. The question arose whether the senior subordinate judge is a court to which appeals would ordinarily lie. The Supreme Court observed (p. 395):

“In determining the court or courts to which an appeal will ordinarily lie, we have to see which court or courts entertain appeals from that class of tribunal in the ordinary way apart from special notifications or laws that lift the matter out of the general class.”

31. The Supreme Court held that since the power to receive appeals in special category of cases is not a power common to all subordinate judges or to all senior subordinate judges, it cannot be said that appeals from the courts of the various subordinate judges “ordinarily” lie to the senior subordinate judge.

32. It is true that the Supreme Court has made some observations in para. 24 of the judgment, which may suggest that the decision is confined to the Punjab Act. But the rule of interpretation laid down by the Supreme Court is wide enough to cover notifications under the proviso to s. 13 of the Kerala Civil Courts Act. If the interpretation is given effect to, the subordinate judge, Cochin, in this case, had no jurisdiction to entertain the revision petition against the order in execution by the munsiff. Assuming that the subordinate judge, Cochin, had no jurisdiction to entertain the revision, it does not mean that this court should maintain the decision of the munsiff. The learned munsiff has refused to execute the order of eviction passed by the rent control court on the ground that sanction of the company court had not been obtained as directed in s. 446(1). By such refusal the munsiff refused to exercise the, jurisdiction vested in him under law. Since the munsiff is to execute the order as if it is a decree passed by him, while so executing the functions as a court, the restrictions on the filing of appeals will not alter the position. The order passed by the munsiff is something which falls within the purview of s. 115 of the CPC. It is true that under s. 14 of the Buildings (Lease and Rent Control) Act, a revision is provided to the subordinate judge. That will not in any way affect the general power of superintendence conferred on this court under s. 115 of the CPC. This court can, in appropriate cases, set aside orders of the subordinate courts suo motu, whenever it is found that such a course is necessary in the interests of justice, if conditions in s. 115 of the CPC are satisfied. In the instant case, the preliminary objection regarding the maintainability of the revision petition was not raised while the matter was pending before the subordinate judge. If that had been done the subordinate judge could have considered the aspect at a preliminary stage and such a course would have enabled the respondent to take other appropriate steps if the revision petition had been held as not maintainable. The case here is one similar to the Full Bench decision in Ramayya v. Venkanraju, AIR 1954 Mad 864 [FB]. In that case, in the course of an appeal before the High Court, presumably filed under s. 47 of the CPC, against a decision of the subordinate judge in appeal against an order of the munsiff, objection was taken that the appeal before the subordinate judge was not maintainable as the matter did not fall under s. 47 of the CPC. The Full Bench held that, in the circumstances of the case, it was only fit and proper to set aside the order of the munsiff, in exercise of the revisional jurisdiction. The Full Bench observed [p. 870]:

“The powers of the High Court under S. 115, Civil P.C, are very wide, Under that section, the High Court may call for the record of any case which has been decided by any court subordinate to such High Court and in which no appeal lies thereto and make such order in the case as it thinks fit. Under this section, therefore, the High Court may of its own motion call for any record or may do so at the instance of a party. It does not preclude the High Court from exercising its powers of revision suo motu if the other conditions laid down in the section are satisfied.”

33. In this case, the conclusions of the subordinate judge, on the merits of the case, are correct and deserve to be confirmed. Assuming that no revision lay to the subordinate judge, the facts and circumstances of the case justify an interference in revision suo motu by this court of the order of the munsiff. The order of the munsiff dismissing E.P No. 262 of 1978 will in any case stand set aside. The munsiff will restore the execution petition to file if not already done and dispose of it according to law.

34. The revision petitions are disposed of as above. No costs.