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S. Sunil Kumar And Etc. v. P. Prakash .
Factual and Procedural Background
The Civil Revision Petitions under consideration involve a common legal question: whether a decree passed by a Court of Small Causes can be transferred to a Civil Court for execution by attachment and sale of immovable property of the judgment-debtor. These revisions were referred by a single Judge for reconsideration of a prior decision in Raman Namboodiri v. Kunhayamath (1989 (1) Ker LT 74) in light of a Division Bench decision of the Travancore-Cochin High Court in Mohammed Mastan Kunju Mohammed Abdul Khadar v. Mytheen Kunju Pakiru Mohammed (AIR 1956 Trav-Co 213). The original decrees were passed by the Additional Small Cause Court, Bangalore, and the Execution Court had dismissed execution petitions relying on Raman Namboodiri's case, which held that neither the Small Cause Court nor the Civil Court has jurisdiction to execute a decree against immovable property when passed by a Small Cause Court.
Legal Issues Presented
- Whether a decree passed by a Court of Small Causes can be transferred to a Civil Court for execution by attachment and sale of immovable property of the judgment-debtor.
- The scope and interpretation of Section 7, Section 38, Section 39 (including sub-section (3)), and Section 42 of the Code of Civil Procedure (CPC) in relation to execution of decrees passed by Courts of Small Causes.
- The effect of the Kerala Small Cause Courts Act, specifically Sections 12, 13, and 31, on the jurisdiction of Small Cause Courts and Civil Courts regarding execution of decrees.
- The impact of legislative amendments, particularly the U.P. Amendment Act 24 of 1954 and its subsequent repeal, on the powers of transferee Courts executing decrees of Small Cause Courts.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Raman Namboodiri v. Kunhayamath, 1989 (1) Ker LT 74 | Held that Small Cause Courts have no jurisdiction to execute decrees against immovable property and that Civil Courts also lack jurisdiction to execute such decrees transferred from Small Cause Courts. | Initially relied upon by the Execution Court; overruled by the present Court as it misinterpreted jurisdiction under CPC and Small Cause Courts Act. |
| Mohammed Mastan Kunju Mohammed Abdul Khadar v. Mytheen Kunju Pakiru Mohammed, AIR 1956 Trav-Co 213 | Division Bench held that execution of Small Cause Court decrees by the same Court exercising civil jurisdiction is valid, effectively allowing transfer and execution by civil Courts. | Supported the view that Civil Courts can execute decrees passed by Small Cause Courts after transfer. |
| Jalla Mall Jawahar Mall v. Motia, AIR 1941 Lah 109 | Recognized the practice of transferring Small Cause Court decrees to ordinary Civil Courts for execution against immovable property; held the bar on Small Cause Courts executing such decrees does not prevent execution by Civil Courts. | Relied upon by the Travancore-Cochin High Court to uphold transfer and execution by Civil Courts. |
| Ram Lochan v. Mahadeo Singh, AIR 1970 All 544 (Full Bench) | Held that after the 1954 amendment to Section 42 CPC, transferee Courts have no power to execute decrees by attachment and sale of immovable property if the decree was passed by a Small Cause Court. | Considered in relation to legislative amendments affecting transferee Court powers; distinguished due to subsequent repeal of the amendment. |
| Mahadeo Prasad Singh v. Ram Lochan, AIR 1981 SC 416 | Upheld the Full Bench decision in Ram Lochan, confirming the effect of the 1954 amendment on transferee Court powers and clarifying the non-retrospective effect of the repeal. | Clarified the current applicability of Section 42 CPC provisions and legislative amendments relevant to execution jurisdiction. |
| Manzurul Haq v. Hakim Mohsin Ali, AIR 1970 All 604 (Full Bench) | Interpreted Sections 15 and 16 of the Provincial Small Cause Courts Act to hold that Small Cause Courts have preferential, not exclusive, jurisdiction and that Civil Courts may try suits cognizable by Small Cause Courts if no Small Cause Court exists. | Used to reject the notion that Civil Courts lack jurisdiction to execute transferred decrees and to support the view on jurisdiction overlap. |
| Bhaiyalal v. Tikaram, AIR 1970 MP 237 (Full Bench) | Held that a suit of small cause nature tried as a regular suit in violation of the Small Cause Courts Act is not void for lack of jurisdiction. | Supported the principle that irregularity in filing venue does not invalidate the decree or execution proceedings. |
| Sankar Singh v. Secretary, Hosdurg Housing Co-Op. Society, 1996 (2) Ker LT 226 | Held that a Munsiff Court lacked jurisdiction to try suits exceeding pecuniary limits at the time but allowed execution petitions to be re-presented after jurisdictional changes. | Demonstrated flexibility in jurisdictional competence relevant to execution petitions. |
Court's Reasoning and Analysis
The Court examined the interplay of various statutory provisions, judicial precedents, and legislative amendments concerning the execution of decrees passed by Courts of Small Causes. It analyzed Section 7, 38, 39, and 42 of the CPC, the Kerala Small Cause Courts Act (Sections 12, 13, and 31), and relevant case law. The Court noted that the earlier decision in Raman Namboodiri v. Kunhayamath was based on a restrictive interpretation of jurisdiction and did not adequately consider the legislative intent and subsequent judicial pronouncements.
The Court relied on the Division Bench decision in Abdul Khader’s case and the Lahore High Court’s ruling in Jalla Mall Jawahar Mall, which recognized the practice of transferring decrees for execution by Civil Courts. It highlighted that the bar on Small Cause Courts executing decrees against immovable property does not extend to Civil Courts executing such decrees after transfer.
Regarding legislative amendments, the Court observed that the 1954 U.P. Amendment Act limited transferee Court powers to those of the transferor Court but was later repealed without retrospective effect. Therefore, the unamended provisions apply, allowing transferee Civil Courts jurisdiction to execute such decrees.
The Court also clarified the nature of jurisdiction under the Small Cause Courts Act, rejecting the notion of exclusive jurisdiction and recognizing that Civil Courts retain jurisdiction to try and execute decrees even in matters cognizable by Small Cause Courts, especially where pecuniary limits or local arrangements apply.
Finally, the Court concluded that the decree passed by a Court of Small Causes can be transferred to a Civil Court, which has jurisdiction to execute the decree by attachment and sale of immovable property. It directed the execution Court to proceed accordingly.
Holding and Implications
All Civil Revision Petitions are allowed.
The Court overrules the decision in Raman Namboodiri v. Kunhayamath (1989 (1) Ker LT 74) and holds that a decree passed by a Court of Small Causes can be transferred to a Civil Court and executed by sale of immovable property of the judgment-debtor.
The direct consequence is that execution Courts must proceed with execution of such decrees in accordance with law. No new precedent beyond this decision is set, but the ruling clarifies and corrects previous restrictive interpretations, affirming the jurisdiction of Civil Courts to execute Small Cause Court decrees against immovable property after transfer.
1. In all these Civil Revision Petitions, the common question for consideration is whether a decree passed by a Court of Small Causes can be transferred to a Civil Court for execution by attachment and sale of immovable property of the judgment-debtor.
2. These Revisions are placed before us on reference by a single Judge of this Court who thought that the decision of another single Judge (K.T Thomas, J. as His Lordship then was) reported in Raman Namboodiri v. Kunhayamath 1989 (1) Ker LT 74, requires reconsideration in the light of a Division Bench decision of Travancore-Cochin High Court in Mohammed Mastan Kunju Mohammed Abdul Khadar v. Mytheen Kunju Pakiru Mohammed, AIR 1956 Trav-Co 213. In these C.R Ps. the original decrees granted were those of the Additional Small Cause Court, Bangalore. The Execution Court dismissed the Execution Petition relying on the decision in Raman Namboodiri's case. It is stated in Raman Namboodiri v. Kunhayamath that under Section 7 of the C.P.C, Small Cause Court has no jurisdiction for execution of a decree against immovable property. It is also held that even if the decree is transferred to a civil Court for the purpose of execution, that Court also has no jurisdiction to execute the decree by sale of immovable property. The reason stated by the learned Judge for holding so is that Section 39 of the CPC prescribes that a decree may be sent for execution to a Court of competent jurisdiction and that what is meant by a Court of competent jurisdiction can be seen from sub-section (3) of Section 39 and that it should be Court which would have jurisdiction to try the suit in which such decree was passed. It is further held that under Sections 12 and 13 of the Kerala Small Cause Courts Act, a Court of Small Causes alone has got jurisdiction to execute the decree passed by the Small Cause Court and not the Civil Court.
3. Section 7 of the CPC came up for interpretation before a Division Bench of the Travancore-Cochin High Court in Abdul Khader v. Pakiru Mohd., (AIR 1956 Trav-Co 213). Their Lordships relied on the decision of the Lahore High Court in Jalla Mall Jawahar Mall v. Motia, AIR 1941 Lah 109. In Abdul Khader's case a decree passed by a Court of Small Causes was transferred for execution to the same Court on its regular civil jurisdiction. The Division Bench held that the execution of the decree passed by the Small Cause Court by the same Court, in exercise of civil jurisdiction was in effect transferring the decree from Small Cause Court and as it was after such transfer, the property was attached and sold and the same was, therefore, valid. Since the Division Bench in Abdul Khader's case heavily relied on the decision of the Lahore High Court, and accepted the reasoning of that decision, it is necessary to discuss the decision of the Lahore High Court in Jalla Mall's case (AIR 1941 Lah 109). The Division Bench of the Lahore High Court observed that the fact is that in all the Subordinate Courts of at least five of the Indian High Courts, the practise of transferring the decrees of the Small Cause Court to the Court of ordinary jurisdiction to enable the Court to sell the immovable property in execution of the Small Cause Court decree, was recognised. The Lahore High Court examined Section 7 of the CPC and Order 51 and held that the bar provided under the CPC was only for execution of a decree against immovable property by Small Cause Court acting as such. It was held that the Court could not think of the Legislature forcing a litigant to go to a particular Court for his remedy and when he has got his remedy from that Court to find that it is infructuous because it cannot be enforced against the only property which the judgment-debtor may have. It was further held that the only reason for denying Small Cause Court, the jurisdiction to execute such decree might be that there is no right of appeal for the aggrieved party from the decision of the Small Cause Court if that Court was to execute the decree. Therefore, the bar is only for the Court of Small Causes to execute the decree and not for the decree passed by the Court of Small Causes to be executed and realised through a civil Court having jurisdiction.
4. Section 38 of the C.P.C allows a decree to be executed either by the Court which passed the decree or by the Court to which it is sent for execution. Section 39 provides for transfer of decree by the Court which passed it to another Court of competent jurisdiction. sub-section (3) of Section 39 provides that for the purpose of the 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 the decree to it, such Court would have jurisdiction to try the suit in which such decree was passed. Section 42 of C.P.C stipulates that the Court to which the decree is transferred for execution will have the same powers as if it had been passed by itself. The exception to this power as provided in sub-section (4) is not relevant for the purpose of these cases. Order 21, Rule 82, CPC prescribes that sale of immovable property may be ordered by any Court other than a Court exercising Small Cause jurisdiction.
5. A Full Bench of the Allahabad High Court in Ram Lochan v. Mahadeo Singh, AIR 1970 All 544, considered the powers of the transferee Court under Section 42 of the CPC as amended by U.P Amendment Act 24 of 1954. It was held that after Section 42 was amended in 1954, the transferee Court would have no power to execute the decree by attachment and sale of the property where the decree was passed by a Court of Small Causes. Section 42 as amended by the U.P Amendment read as follows:
“The Court executing the decree sent to it shall have the same powers in executing such decree as the Court which passed it. All persons disobeying or obstructing the execution of the decree shall be punished by such Court in the same manner as if it had passed the decree and its order in executing such decree shall be subject to the same rules in respect of appeal as if the decree had been passed by itself.”
The Full Bench held that after the amendment, the powers of the transferee Court had been made conterminous with the powers of the transferor Court. This decision of the Full Bench of the Allahabad High Court was upheld by the Supreme Court in Mahadeo Prasad Singh v. Ram Lochan (AIR 1981 SC 416). The Supreme Court held that the Amendment Act 24/54 had taken away the power of the transferee Court to execute the transferred decree by attachment and sale of the immovable property by making it conterminous with that of the transferor Court which, in the instant case, was the Small Cause Court and in view of the prohibition contained in Order 21, Rule 82, C.P.C it had no power to execute its decree by sale of immovable property. In paragraph 31 of the judgment, the Supreme Court has clearly stated that it was the Amendment Act 24/54 which took away the power of the transferee Court to execute the transferred decree by attachment and sale of the immovable property by making it conterminous with that of the transferor Court. In paragraph 36 of the judgment it is also observed by the Supreme Court that the amendment made by Act 24/1954 was subsequently deleted by the U.P Amendment Act 14/1970 and the Amendment Act was not having retrospective operation. It did not affect the previous operation of Amendment Act, 24/1954. So far as the cases before us are concerned, it is the unamended provisions which are applicable to the cases and that provisions read as follows:
“42. Powers of Court in executing transferred decree:— (1). The Court executing a decree sent to it shall have the same powers in executing such decree as it had been passed by itself. All persons disobeying or obstructing the execution of the decree shall be punishable by such Court in the same manner as if it had passed the decree. And its order in executing such decree shall be subject to the same rules in respect of appeal as if the decree had been passed by itself.”
Therefore, it is clear that, but for the U.P Amendment Act 24/1954, the transferee Court would have jurisdiction to execute the decree of Small Cause Court by attachment and sale of immovable property.
6. In Raman Namboodiri's case (1989 (1) Ker LT 74), this Court also referred to Section 39 of the C.P.C and, in particular, sub-section (3), to find that a decree may be sent for execution to a Court of competent jurisdiction and such Court would be the Court which has jurisdiction to try the suit in which such decree was passed. According to the learned single Judge, sub-section (3) was introduced by Amendment Act 1976 and that makes the position clear that the transferee Court must be the Court which has got jurisdiction to try the Small Cause Court case. The objects and reasons for amendment are as follows:
“Clause 19:— Section 39 of the Code provides for the transfer for execution of a decree by the Court which passed the decree to another Court. There is a conflict of decisions with regard to this Section as to whether—
(i) the Transferee Court must be a Court of competent pecuniary jurisdiction, and
(ii) if so, whether the competence should be Judged with reference to the decree or suit. The Section is being amended to clarify the position by providing that the transferee Court must have pecuniary competence to deal with the suit in which the decree was passed.”
In the light of the above objects and reasons, the reason for inclusion of sub-section (3) was only to emphasis the pecuniary jurisdiction of the transferee Court.
7. In Raman Namboodiri's case (1989 (1) Ker LT 74) the learned Judge also relied on Sections 12 and 13 of the Small Cause Courts Act. It is stated that Section 12 debars a Court of Small Causes from taking cognizance of suits exempted under the Act and Section 13 interdicts the Civil Court from trying a suit of Small Causes. With great respect Section 13 does not contain such a prohibition. It reads as follows:
“13. Exclusive jurisdiction of Courts of Small Causes:—Save as expressly provided by this Act or by any other enactment for the time being in force a suit cognizable by a Court of Small Causes shall not be tried by any other Court having jurisdiction of the Court of Small Causes by which the suits is triable”
A Full Bench of the Allahabad High Court in Manzurul Haq v. Hakim Mohsin Ali, AIR 1970 All 604 (FB) had occasion to consider Sections 15 and 16 of the Provincial Small Cause Courts Act (1887). In paragraphs 20 and 21 of the Full Bench decision, there is a discussion of this aspect and we quote the same:
“20. By virtue of Section 15, Civil P.C the Court of Munsiff is the only Court in which Civil suits up to a certain valuation can be filed. If the civil suits exceed that valuation, they have to be filed in the Court of the Civil Judge. However, from that it cannot be inferred that the Civil Judge lacks the initial jurisdiction to entertain cases below a certain valuation. In view of the fact that the law requires that all the suits shall be instituted in the Court of the lowest grade competent to try it, a civil suit up to a certain valuation is filed in the Court of the Munsiff. But for that provision it could have been filed in the Court of the Civil Judge also. Even with the provision, where the Court of Munsiff does not exist and a Court of Civil Judge exists, all the suits whatever their valuation might be, will have to be filed in the Court of the civil Judge. In such circumstances it cannot be said that the Court of the Munsiff has exclusive jurisdiction to try civil suits up to a certain valuation.
21. Similar is the effect of Section 16 of the Provincial Small Cause Courts Act. If a Small Cause Court has not been established for any particular area, all the civil suits, whether or not they might be cognizable by a Court of Small Causes, shall have to be instituted in the Court of the Munsiff exercising jurisdiction in that area. It is only after a Small Cause Court has been established for that area that all suits cognizable by a Court of Small Causes are to be instituted before the Court of Small Causes and not before the Court of Munsiff. The Court of Small Causes thus becomes a Court of “preferential jurisdiction”, and not of “exclusive jurisdiction”.
In paragraph 40 of the same judgment it is stated as follows:
40. A perusal of the section, as reproduced above, would show that it is only an enabling provision and not a disabling provision. In other words, it only says that a Court of Small Causes shall have the jurisdiction to take cognizance of all suits of the nature specified in sub-clause (2) thereof. It does not say that no other Court shall have jurisdiction to take cognizance of such suits. Therefore, so far as section 15 is concerned, in my view, it cannot form the basis of an argument that a Court of Small Causes is a Court of exclusive jurisdiction.”
In Bhaiyalal v. Tikaram, AIR 1970 MP 237 (FB), it was held that where a suit of small cause nature is instituted and tried as a regular suit in contravention of Section 16 of the Provincial Small Cause Courts Act, 1887, and the judgment is rendered, it cannot be said that the judgment so rendered is without jurisdiction or it is a nullity. The decision in Raman Namboodiri's case (1989 (1) Ker LT 74) was followed by another Judge of this Court in Sankar Singh v. Secretary, Hosdurg Housing Co-Op. Society (1996 (2) Ker LT 226) in a different context. The question considered in that case was whether an award which was for more than Rs. 20,000/- passed under Section 76(a) of the Co-op. Societies Act can be executed by a Munsiff. It was held that at the time when the petition was filed, the Munsiff Court has no jurisdiction to try the suits for such violation. It was also observed that if the petitioner wants he can reoresent the execution petition in the Munsiff's Court itself since, subsequently, the pecuniary jurisdiction of the Munsiff Court is increased.
8. There is another important aspect in these cases. The decree passed in most of these cases are of Rs. 18,000/- and above. In two cases, the same were for Rs. 15,000/-. In fact, if the suits were to be filed in Kerala, these suits could only have been filed as regular suits before a Civil Court. Therefore, at any rate, the transferee Court has got the jurisdiction to execute the decree by application of Section 39 of the C.P.C itself. The learned counsel for the respondent contended that in such a case, the transfer should have been made to the Munsiff's Court and not to the Sub-Court as the suits were to be filed before the Munsiff's Court in Kerala. We find it difficult to accept the above contention. Though under Section 15 of the C.P.C, every suit shall be instituted in the Court of the lowest grade competent to try it, it does not mean that the subordinate Judge's Court has no jurisdiction to try the suits with lesser pecuniary jurisdiction. The uniform opinion of almost all the High Courts is that Section 15 of CPC embodies only a rule of procedure and not of jurisdiction. If a suit which ought to have been filed before Munsiff Court was filed before the Subordinate Judges Court and a decree is passed, the decree is not a nullity. It is only a case of irregularity not affecting the jurisdiction of the Court to try it. Therefore, the argument based on Section 39, CPC that if the suits were to be filed in Kerala, they could only be filed before the Munsiff Court and the execution petition before the Subordinate Judge's Court is incompetent is not tenable. The order of transfer to the Subordinate Judge's Court is not challenged. Only if the Subordinate Judge's Court has no jurisdiction at all to execute the decree, it can be interfered in revision.
9. Section 31 of the Small Cause Courts Act, 1957 also gives some indication about the question involved in this case. Section 31 reads as follows:
“31. Modification of Code as so applied.— Notwithstanding anything in Sections 29 and 30—
(a) When in exercise of the jurisdiction of a Court of small Causes, a Court invested with that jurisdiction sends a decree for execution to itself as a Court having jurisdiction in suits of a civil nature which are not cognizable by a Court of Small Causes; or
(b) when a Court, in exercise of its jurisdiction in suits of a civil nature which are not cognizable by a Court of Small Causes, sends a decree for execution to itself as a Court invested with the jurisdiction of a Court of Small Causes;
the documents mentioned in Order XXI, Rule 6 of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908) shall not be sent with the decree unless in any case the Court, by order in writing, requires them to be sent.”
It is, therefore, seen that the Legislature had contemplated cases where Small Cause Court sends the decree for execution to Civil Court. Sections 12 of the Small Cause Courts Act only provide for exclusion of jurisdiction with regard to suits specified in the schedule and section 13 states that a suit cognizable by a Court of Small Causes shall not be tried by any other Court having jurisdiction of the Court of Small Causes by which the suit is triable. It is not a cases of exclusion of the jurisdiction of the civil Court as held in Raman Namboodiri's case.
10. In the light of the above discussion, we overrule the decision reported in Raman Namboodiri v. Kunhayamath 1989 (1) Ker LT 74 and hold that a decree passed by a Court of Small Causes can be transferred to a Civil Court and that the decree can be executed by sale of immovable property of the judgment-debtor. All these Civil Revision Petitions are allowed and the execution Court is directed to proceed with the execution in accordance with law.
Parties shall appear before the execution Court on 6-12-2004.
Petition allowed.
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