This case came on for hearing before Oldfield and Tyabji, JJ., who in referring the case to a Full Bench made the following, orders:—
Oldfield, J.:— The facts, as submitted, are that the first defendant in execution of his decree attached moveable property, as belonging to the second defendant, his judgment debtor. The plaintiff claimed unsuccessfully and then brought the present suit for the return of the property or payment of its value by the first defendant. The property is in the custody of the Court. The questions referred are—
(1) Is the suit maintainable?
(2) Is the plaintiff bound to ask for an express declaration of her right to the property?
(3) Is the suit one contemplated by Order XXI, rule 53, of the Small Cause Court Rules and is it cognizable by the Small Cause Court?
It is to be observed first that Questions 1 and 2, may, for the purpose, of the reference, be treated as alternative. The object is to determine the form in which the plaintiff should ask for relief, and the Court, to be determined with reference to that form, which can give it. If she is bound to ask for a declaration and cannot obtain one in a Small Cause Court, she will not be able to alter the latter fact by asking also for a decree for possession, which such a Court ordinarily could give, because she either is obliged or chooses to do so.
The first defendant's objection to the suit as framed is shortly that the plaintiff's claim for recovery of property from a person who is not in possession of it, is meaningless and not maintainable. Contra, it is urged that in fact the first defendant is in possession of it through the attaching Court, since the Court holds it on his behalf, either generally or as his agent. This view is not tenable. Two respects only have been referred to, in which the possession of the Court resembles that of an agent, that (1) its officers would be liable to the first defendant in case the property were lost or damaged through their negligence, (2) the first defendant can at any time terminate the Court's possession by withdrawing his attachment. But as regards (1) (the liability to the first defendant would be only for such proportion of the value of the property, not exceeding the amount of his decree as might have been recoverable by its sale, the second defendant being entitled to recover also, in case the first defendant's claim did not exhaust the whole value; and as regards (2), though the first defendant could terminate the Court's custody at his option, he could not himself obtain possession, since it would revert to the person from whom it was taken. In other respects the attempt to represent the Court's possession as that of the first defendant's attempt fails entirely. The property is not the first defendant's and did not come into the Court's possession as his and he would not suffer, except indirectly and in the event of his not being able to recover his decree amount otherwise, by its loss or deterioration in circumstances in which no compensation could be claimed. Nor, the analogy with agency failing, is the contention that the Court's, custody is in some less specific way equivalent to the first defendant's better established. For the distinctions drawn between the former and the custody of an agent are equally applicable to any more general relation which can be suggested. The difficulty in the plaintiff's way is still that attachment does not affect ownership and that the Court, though it holds the property et the creditor's, instance holds it in no way at his direct disposal or more for his benefit than for that of the debtor; to whom it belongs and whose debt it is to discharge. It is not necessary to decide whether the Court's custody is sui generis or is covered by any of the general legal descriptions of possession. It is sufficient that the property has not been shown to be in the possession of the first defendant. He, therefore, cannot be sued for its recovery. The alternative is that the plaintiff must establish he right against him by a suit for a declaration.
The Madras cases are consistent with this. The first referred to here—Janakiammal v. Vithenadien(1)—is no doubt in plaintiff's favour. Its authority is, however, doubtful, because the report does not refer explicitly to the Court's custody of the property and because the case was not argued. The next—Booche Naidoo v. Lutchmeepaty Naidoo(2)—is not in point, because the Court's custody had ceased on the sale of the attached property to the second defendant, from whom possession or the value was claimed. Narainan v. Nilakandan Nambudri(3) was decided under the Code of Civil Procedure, and the property being immoveable, the Court's custody was not in question. The decision, however, laid down generally that an unsuccessful claimant cannot ask for the discharge of the order of attachment in his suit, but must obtain a declaration and carry it to the attaching Court which will act on it. The point actually decided was that the plaintiff was not bound to ask for specific relief in the shape of a discharge of the attachment, besides a declaration regarding it or the ownership of the property and it is to be presumed, that any contention regarding specific relief, at the hands, of the defendants, would have been similarly negatived. In Naranayyan v. Nageswarayyan, the Court, no doubt, said generally that a plaintiff in a suit under section 283 of the Civil Procedure Code, could ask for specific relief as well as a declaration. But this statement had no bearing on jurisdiction, or the facts of the case which do not appear to have included possession by an attaching Court. The two next decisions are greatly relied on by the plaintiff. In Mahomed Koya v. Kasmi, decided under the Provincial Small Cause Courts Act, it was held consistently with the first, defendant's present argument that the plaintiff was not; bound to sue for recovery of the moveables under attachment and had sued rightly for a declaration. But reliance, has been placed on the words “if plaintiff had sued for recovery of the property the suit would be cognizable by a Court of Small Causes.” They are, however, followed immediately by others, which show that this statement was conditional on the circumstances enabling the Plaintiff to sue for possession at all and that they in fact did not do so, because the property was in the possession, not of any private person, but of the Court; which could not be sued. Next in Ambu v. Ketlilamma immoveable property was in question and there was therefore no possession by an attaching Court, the property being in fact in possession of an auction-purchaser. The plaintiff had already sued once under section 283 of the Code of Civil Procedure, and the question was whether she could sue again after the sale for possession. The observations of Muttuswami Ayyar, J., regarding the claimant's right to sue once only after her title has been declared are therefore not now relevant. They were disapproved in Kunhiamma v. Kunhunni(4), but finally approved in the Full Bench case of Kristnam Sooraya v. Pathma Bee(5). But the last mentioned decision really did no more than endorse the learned Judge's opinion that section 42 of the Specific Relief Act does not take away the plaintiff's right to sue only for a declaration under section 283 of the Code of Civil Procedure and in no way authorized the principle, on which the plaintiff's argument depends, that independently of the circumstances of the case and the nature of the possession, in which the disputed property is, a suit for possession with or without a prayer for declaration is the proper remedy. As to that, the current of Madras authority is in the first defendant's favour.
So also in Calcutta and Allahabad. In Shiboo Narain Singh v. Mudden Ally, Natabar Nandi v. Kali Dass Pal, section 288 of the Code of Civil Procedure was in question and the Court was dealing directly with a suit against a purchaser in possession. It therefore held that a suit for possession or the value of the property would lie. But in doing so, it distinguished between such a case and one similar to Ram Dhun Biswas v. Kefal Biswas or that now before us in which no sale had taken place and a declaration had therefore to be asked for. This decision is explained by the Allahabad High Court in the Full Bench case of Godha v. Naik Ram. In it a claim to property in the possession of the Court was in question, and a conclusion consistent with that already based on Madras authorities was reached. The expression of dissent at the end of the judgment from the Madras view can be accounted for by the fact that only the two earliest cases above referred to were considered and the facts in the later were misunderstood.
On the other hand, the plaintiff is no doubt entitled to rely on the most recent case in Bombay. The earlier cases, Nathu Ganesh v. Kalidas Umed and Gordhan Pema v. Kasandas Balmukundas, are also in her favour, though they are of small weight, since neither was decided after argument. But in Raghunath Mukund v. Sarosh K.R Kama(6) the Court held that a suit for possession would lie against the attaching creditor although a claim had been made and failed and that no declaration need be asked for. It, was regarded as conclusive that “the direct object of a claimant whose goods have been attached by the Sheriff is to get his goods released from attachment and not merely to have it declared that they are his.” It can only be replied that this is irreconcilable with the view taken by this Court in Narainan v. Nilakandan Nambudri and the procedure laid down therein as appropriate.
In these circumstances in accordance with general principles and the balance, of authority including that of this Court, question I must be answered in the negative and question 2 in the affirmative.
The decision renders it unnecessary to answer question 3 as it stands. For the suit, as brought, is not such as Order XXI, rule 53 and the facts authorize. It may however be observed that there is no reason why the suit for a declaration contemplated by Order XXI, rule 53, should not be covered, like other suits for declaration, by section (19)(s) and excluded from the Court's jurisdiction. It is not necessary to go through the different codes. Small Cause Courts Acts and Rules, since they all provide in practically identical terms for a suit to establish the claimant's, right. It would be useless to follow the learned Judges in their conjectures as to the intention of the Legislature in using those words, since no certain basis for such conjectures has been suggested. A more legitimate ground of decision is the fact that in the Provincial Small. Cause Courts Act in force before 1887, suits for declaratory decrees were excepted generally from the small cause jurisdiction, whereas, in Act IX of 1887, suits for declarations other than suits under sections 283 and 332 of the Code of Civil Procedure were excepted by Schedule II, article 19, and suits under those sections were excepted specifically by article 20. This is not significant, as the plaintiff contends, as a special treatment of such suits for the provincial Courts, but rather as indicating the manner in which the term suits for declaratory; decrees should be understood, with reference to its use in a similar enactment. It would serve no useful purpose to go through the authorities again with regard to this point. In those in which conflict between ordinary and small cause jurisdiction is in question, the decision depends on the presence or absence of an obligation to ask for a declaration, and to get the adverse order on the plaintiff's claim petition set aside. It is with reference to the existence of that obligation that a conclusion must be reached, Order XXI, rule 53, providing only for the suit, but not specifying the forum in which it should be brought. If, therefore, question 3 is really whether a person; in plaintiff's position can sue in the Small Cause Court, it must be answered in the negative.
As my learned brother differs, the case must be placed before a Full Bench for disposal.
Tyabji, J.:— The present suit must, it seems to me, be considered, by reason of the allegations in the plaint, as set out in the reference to us, to be one for “the establishment of a right” under Order XXI, rule 53 of the Small Cause Courts Rules (corresponding to Order XXI, rule 63 of the Civil Procedure Code). It does not appear whether the Order and rule are specifically mentioned in the plaint; but the circumstances alluded to in rule 53 are set out and there seems no doubt that the plaintiff and all concerned considered the suit to be instituted under the said rule. In none of the numerous reported cases where similar allegations were made, has any question been raised about the suit being for the establishment of the right, under the rule or the corresponding sections. See for instances prayer (d) in Kishori Mohun Rai v. Hursook Dass affirmed in Kissorimohun Roy v. Harsukh Das, and the prayers in Phul Kumari v. Ghanshyam Miara.
The attachment and unsuccessful claim affect the rights of the parties not only as to limitation, but also, it seems to me, by giving rise to a new cause of action “to establish the right which he” (the unsuccessful claimant) “claims to the property in dispute.” See Godha v. Naik Ram (Straight, Oldfield, Brodhurst and Tyrell, JJ.) and Phul Kumari v. Ghanshyam Misra.
Though this cause of action is similar to that on which a suit for a declaratory decree is based [Presidency Small Cause Courts Act, section 19(s)], yet it is different in the following, and perhaps other, respects:—
(1) The granting of a declaration falling as it does under section 42 of the Specific Relief Act is discretionary: establishing the right is not discretionary. Raghunath Mukund v. Sarosh K.R Kama (Farran, C.J, and Strachey, J.).
(2) A suit for “establishment of right” is not subject to the rule contained in the last cited section that if the plaintiff, being able to seek further relief than a mere declaration, omits to do, the declaration cannot be granted; Dabholkar v. Balkrishna Mahadev Gadre, (Westropp, C.J, M. Melvill, J., F.D Melvill, J.), Kristnam Sooraya v. Pathma Bee, White, C.J, Subramanya Ayyar and Davies, JJ.), adopting Muthuswami Ayar, J.'s view in Ambu v. Ketlilamma and overruling Collins, C.J, and Wilkinson, J., in Kunhiamma v. Kunhunni though further and consequential reliefs may be prayed for and granted. Sadu bin Raghu v. Ram bin Govind and Naranayyan v. Nageswarayyan(7).
(3) “A suit for establishing a right of the kind contemplated” in the section or rule in question “seeks not only a declaration of the plaintiff's right, but also substantial consequential relief in the setting aside or restoration of the attachment.” Dayachand Nemchand v. Hemchand Dharamchand(8) (see the question referred to the High Court at page 517) and the suit to establish a right has been considered as distinct from one for a declaration (though as the result of a strict construction of a fiscal enactment like the Court Fees Act, the stamp duty on the two suits may be the same: Dhondo Sakharam Kulkarni v. Govind Babaji Kulkarni(9) and Phul Kukarni v. Ghanshyam Misra(10).
(4) “The direct object of a claimant whose goods have been seized by the Sheriff is to get his goods released from attachment, and not merely to have it declared that they are his. In substance the suit is for the goods, though as a matter of form the decree may contain a declaration. * * * It would be an error to call a suit intended to have such a result a suit for a declaration;” Raghunath Mukund v. Sarosh K.R Kama. Such a suit therefore though it may not be “a suit for possession of personal property pure and simple”—Makund Lal v. Nasir-ud-din(11) and Ilahi Bakhsh v. Sita—yet it differs from it merely by reason of the attachment, and may therefore “be properly regarded as a suit “for personal property” Chhaganlal Nagardas v. Jeshan Rav Dalsukhram (Melvill and Pinhey, JJ.) and Pagi Partap Hamir v. Varajlall Mulchand (Sargent, C.J and Kemball, J.) Nor does the section (or rule) “prevent a tribunal before which such a party” (i.e “against whom an order upon an application under that section has been made”) “might have brought his suit, if there had not been any application made under that section, from entertaining it,” per Westropp, C.J and Melvill, J., Nathu Ganesh v. Kalidas Umed and Gordhan Pema v. Kasandas Balmukundas (Melvill and Kemball, JJ.).
(5) The suit to establish the right supplies the absence of any provision by which a Court other than a Court of Appeal or a High Court may discharge an order for attachment. “It is in substance to reverse the order of the Court out of which the execution issued.” Alexander Mitchell v. Mathura Das. The effect of a judgment in such a suit is “to supersede” the order on the claim petition, and “to render it altogether inconclusive;” Kissorimohun Roy v. Harsukh Das, Lord Watson speaks of the “decree” of the Subordinate Judge dismissing the respondents' claim.” I have substituted “order” Sadu bin Raghu v. Ram bin Govind. This jurisdiction may be exercised according to Narainan v. Nilakandan Nambudri, by a Court whose jurisdiction is inferior to that of the Court which issued the order for attachment; see also Krishnappa Chetty v. Abdul Khader Saheb. The Allahabad High Court on the other hand considered that this would be so inconvenient as to justify their differing from the Madras and Bombay High Courts. Godha v. Naik Ram.
(6) Attachment of moveable property is for the purposes of a suit to “establish the right not equivalent to dispossession; Pagi Partap Hamir v. Varajlall Mulchand, following Chhaganlal Nagardas v. Jeshan Rav Dalsukhram. The attaching creditor is responsible for the property while it is under attachment—Kissorimohun Roy v. Harsukh Das.
(7) The phrase “suit to establish his right construed in its narrowest sense does not exclude a suit in which reliefs consequential upon a declaration are expressly prayed for. If the phrase is more largely construed, even a suit to obtain partition and separate possession may not inaptly be described as a suit to establish his right:” Sadu bin Raghu v. Ram bin Govind. This case refers to the various reliefs which have been either actually granted in a suit to establish a right on the ground that the other reliefs (though not expressly prayed for) are included in, or flow from the establishment of the right; or have been considered as capable of being asked as consequential relief; e.g
(a) setting aside the sale: Bank of Hindustan, etc. v. Premchand et al.
(b) directing the money to be restored; ibid.
(c) recovery of the attached property from the purchaser; Jetti v. Sayad Husein; see note to Venkapa v. Chinbasapa.
(d) setting aside or restoration of the attachment: Dayyachand Nemchand v. Hemchand Dharamchand.
(e) replacing the plaintiff in possession of the property in question: Dabholkar v. Balkrishna Mahadev Gadre.
(f) protection from sale: Ram Prasad…(Defendant); v. Sukh Dai…(Plaintiff)..
(g) partition and separate possession; Sadu bin Raghu v. Ram bin Govind.
In the result: (A) a series of the most distinguished Judges of the High Court of Bombay have consistently held that where a suit is instituted under the circumstances referred to in Order XXI, rule 53, of the Small Cause Courts Rules, its maintainability in that Court is affected neither by section 19(s) of the Presidency Small Cause Courts Act nor by section 42 of the Specific Relief Act, but depends on the character and value, of the property, provided that the plaintiff is the person who alleges that his goods have been wrongly attached. The distinction where the suit is by a decree-holder who asks for his judgment-debtor's rights to be established is very clearly pointed out in Chhaganlal Nagardas v. Jeshan Rav Dalsukhram. But I need not express any opinion as to a decree-holder's suit, and I do not intend to do so, nor in anyway to conclude myself with reference to a suit different from the present one, either as regards the plaintiff's position, or the forum, or the cause of action. (B) The same view is the only one that seems to me to be reconcilable with the decisions of the Madras High Court in Janakiammal v. Vithenadien, Booche Naidoo v. Lutchmeepaty Naidoo and Davud Beg v. Kullappa. There is one other decision of this Court to which I shall refer later. (C) In Calcutta Woomesh Chunder Bose v. Muddun Mohun Sircar per Steer and Jackson, JJ. and Ram Dhun Biswas v. Kefal Biswas per Peacock, C.J and Mitter, J., together contain the same principles as prevail in Bombay; though, a third decision Moozdeen Gazee v. Dinobundhoo Gossamee per L.S Jackson and Glover, JJ., misapplied the second decision, as was pointed out in Shiboo Narain Singh v. Mudden Ally, Natabar Nandi v. Kali Dass Pali. There may, however, be some doubt as to the applicability of the last case to the present question, as, though the observations seem directly in point, the property there concerned was no more under attachment, but was being followed in the bands of the execution purchaser; and the Court held that the judgment-debtor and decree-holder were not proper parties to the suit. See however the cases cited in paragraphs numbered (4) and (6) above. (D) The Allahabad High Court has expressly dissented from the view taken in Bombay and Madras and held that such a suit as the present is not cognizable by the Small Cause Court; Godha v. Naik Ram.
With reference to the case last cited, I may point out (a) that the Allahabad High Court has no original civil jurisdiction and there is no Presidency Small Cause Court; and (b) that its decision is now embodied in the Provincial Small Cause Courts Act, IX of 1897, Schedule II, articles (19) and (20). It seems to me that neither the decision nor the articles furnish a safe guidance in the present case. I refer first to the wording of the articles, and contrast them with section 19(s) of the Small Cause Courts Act. I refer also to the fact that the Presidency Small Cause Courts Act of 1882 was not amended so as to make its terms conform to the said articles. Lastly to hold that the Presidency Small Cause Courts Act, section 19(s), is synonymous with the said articles (19) and (20) read together, would (in the case of a person whose moveable property of small value has been wrongly attached) ordinarily cause a denial of justice by cutting off all remedy except the remedy furnished by the prohibitively expensive suit on the Original Side of the High Court, or perhaps the somewhat less expensive suit in the City Civil Court, Madras. The cases that have been taken to the Privy Council above referred to seem to lend some support to the trend of view taken by the Bombay High Court.
It may no doubt be argued that this consideration has not induced the Courts to permit a decree-holder “to establishing his right to attach and sell certain property as belonging to his judgment-debtor” in the Small Cause Court, Chhaganlal Nagardas v. Jeshan Rav Dalsukhram. But this consideration may perhaps apply in a stronger degree in regard to a person who claims that the property belongs to himself, and has been wrongly attached for the liabilities of a stranger. The Legislature may not have desired to place both plaintiffs in the same position.
In any case, it seems to me difficult to conceive that the Original Side of the High Court should have been intended to try a suit for establishing rights as regards moveable property worth Rs. 53. No precedent has been cited to us of its ever having done so. And if the enactments are so worded that any suits for such a relief can be brought in the High Courts, it seems to me that anomalous result should be restricted within as narrow limits as the canons of construction will allow.
I must now deal with the Madras decision to which I alluded above.
In Mahomed Koya v. Kasmi, Muthuswami Ayyar and Hotchins, JJ. held that a Small Cause Court could not make a declaration that moveable property “which had been attached in execution of a decree” was not liable to be sold for the judgment-debt created by the decree. The ratio decidendi seems to have been that the suit was one merely for a declaration, that section 42 of the Specific Relief Act was not in the plaintiff's way because section 283—the equivalent to Small Cause Court Order XXI, rule 53—permitted him simply “to establish his right.” It is expressly stated that if “he had sought recovery of the property, there is no doubt that the suit would be cognizable by a Court of Small Causes.” The present suit is for the recovery of the property. It is true that it is also stated that “the property was not in the possession of any private person, and he could not sue the Court which attached it.” This sentence taken by itself is opposed be the view that the plaintiff can sue for possession while the property is under attachment. But its rigour is somewhat modified by the remark a little before. “We do not think he was bound to sue for possession”—which might imply that he could have sued for possession. See also the cases cited in paragraphs numbered (4), (6) and (7) above.
It must, however, be admitted that the remark that the property after attachment is not in the possession of any private person and the Court could not be sued, is opposed to the suit being treated as one for possession. But if that remark is to be given its full effect to the extent of disallowing the jurisdiction of the Small Cause Court in the present case, it seems to me to be opposed to the decisions in Janakiammal v. Vithenadien, Booche Naidoo v. Lutchmeepaty Naidoo and to the trend of the decisions of the Privy Council and of all the Courts except that of Allahabad. I do not think any such result was intended to be imported into the remark. It may be that the decision merely permitted remedies in either Court, the choice depending upon the relief sought, a result which was contemplated with equanimity in Davud Beg v. Kullappa, in a matter not so dissimilar as to offer no analogy. The decision was perhaps not unaffected by the principle which is now embodied in the last words of section 21 of the Civil Procedure Code.
It may be, on the other hand, that if the Judges had heard the arguments based on their remark, they would have been not unwilling to adopt the language of a very distinguished Judge who once said: “An extra-judicial remark by myself does occur in that case, and to that remark the District Judge has assigned too much importance. The remark would have been better unmade;” Dayachand Nemchand v. Hemchand Dharamchand. Per Westropp, C.J
I shall now deal with the arguments in the learned third Judge's judgment which I am unable to agree with my learned brother in endorsing. If, he says (1) the suit is for possession, it must fail, because the defendants are not in possession; (2) if it is for a declaration, it is not cognizable by the Small Cause Court; (3) if it is for the value of the property, it must fail, because a decision in favour of the plaintiff would keep the attached property for ever in suspense, inasmuch as it would be obviously improper to let the plaintiff have both the property itself and its value, and it would be equally against principle and good conscience to let a person other than the plaintiff take away or deal with property which has been established to be the plaintiff's.
The answer to the first two alternatives seems to me that the suit is neither exactly for possession nor purely for a declaration: it is a suit on a special cause of action and according to the decisions of this and of the Bombay High Court, its maintainability and forum are governed by somewhat special rules.
With reference to the third alternative,—
(a) The learned Chief Judge and the second Judge shrewdly suspect that if the decree is given, as prayed for, for the return of the property or in the alternative its value, then the defendants will somehow procure delivery of the property to the plaintiff. The learned Judges support their surmise by the experience of what has happened in the case of other defendants in a similar plight.
(b) Nor do I see any great difficulty in the plaintiff's being enabled (should she succeed in establishing her right) to make the same use of the decree as is referred to in Narainan v. Nilakandan Nambudri (per Turner, C.J, and Muthuswami Ayyar, J.).
(c) In this connection, I do not see what difference is made by the forum in which the right is established; nor why the property should remain in suspense only if the Small Cause Court passes the decree.
(d) Sir Charles Farran, C.J and Strachey, J., thought the decree of the Small Cause Court, as a matter of form, might contain a declaration, Raghunath Mukund v. Sarosh K.R Kama; but if that is obnoxious to section 19(s), a clause may be inserted in the decree “establishing the plaintiff's rights.” The form of the decree rests with the Court.
For these reasons, I would answer the reference by saying (1) that the suit as framed is maintainable; (2) the plaintiff is not bound to ask for an express declaration of her rights, but that the decree may contain a declaration to that effect; and (3) the suit falls under Order XXI, rule 53 and is cognizable by the Small Cause Court.
The reference will be referred to a Full Bench as my view differs from that of my learned brother.
P. Sambanda Mudaliyar for the Plaintiff:—The suit is brought under Order XXI, rule 53 (Rules framed by the High Court) and the question is whether such a suit is one of a declaratory nature. All declaratory suits are exempted from the jurisdiction of the Presidency Small Cause Court under section XIX, clause (s) of Act XV of 1882. The corresponding provision in the Provincial Small Cause Courts Act (Act IX of 1887) is clause 19 of the second schedule See also clause 20. Such suits are exempted by the Provincial Small Cause Courts Act. The question is whether they are to be exempted under the Presidency Small Cause Courts Act.
This is not a mere suit for declaration. Question of title has to be gone into, but that is only as an auxiliary relief; the principal relief is the recovery of the property. Where declaration is merely auxiliary to the principal relief claimed, the suit is not one for a merely declaratory decree. All the Madras decisions are in my favour, so also are the Bombay decisions and most of the Calcutta decisions. Allahabad, cases are against me. The practice in Madras has all along been as I contend for.
The authorities are:—In Madras, Mahomed Koya v. Kasmi and Janakiammal v. Vythinadien, in Bombay, Raghunath Mukund v. Sarosh K.R Kama. (Question No. 2 in the reference).
In Calcutta, Akbar Ali v. Jezuddin per Garth, J.
The distinction between pure declaratory suits and suits for the recovery of possession is pointed out in Nathu Ganesh v. Kalidas Umed and is followed in Gordhan Pema v. Kasandas Balmukundas.
[Sadasiva Ayyar, J.:— I do not know if the principle applied is correct.]
[Wallis, C.J:— The actual decision is that the suit is within the jurisdiction of the Small Cause Court.]
[Sadasiva Ayyar, J.:— Speaking for myself, the Privy Council decision in Phul Kumari v. Ghanshyam Misra seems to lay down the correct principle and this is referred to in Krishnappa Chetty v. Abdul Khader Saheb. The suit is one to set aside a summary decision.]
C. Pattabhirama Ayyangar for the first defendant:—
Mahomed Koya v. Kasmi is really in my favour. See page, 208. The question is, in whose possession is the property attached? The possession is with the Court.
[Wallis, C.J:— The fact that possession is with, the Court does not affect the claimant's right. The Privy Council has decided that it is a suit to set aside a summary order. Why should we look at it from a different point of view? If the decree is to set aside an order, it cannot be a declaratory decree.]
Narainan v. Nilakandan Nambudri and Mahomed Koya v. Kasmi are in my favour. See also Shiboo Narain Singh v. Mudden Ally, Natabar Nandi v. Kali Dass Pali. If necessary, I shall refer to the Allahabad decisions.
P, Sambanda Mudaliyar was not heard in reply.
This Reference coming on for hearing the Court expressed the following
Opinion
We think that this suit is not excluded from the jurisdiction of the Small Cause Court under section 19(s) of the Presidency Small Cause Courts Act as a suit for a declaratory decree. Their Lordships of the Judicial Committee have recently pointed out in Phul Kumari v. Ghanshyam Misra that the statutory suit to establish his right given to the unsuccessful party in claim proceedings under the Code involves in every case a prayer for the setting aside of a summary order of a. Civil Court. This being so, such a suit cannot in our opinion be regarded as a suit for a mere declaration. The Small Cause Court Rules reproduce the provisions of the Code as to claim petitions, and cases under them must be governed by the same considerations. We may further observe that our decision is in accordance with the well established practice under which—suits of this nature arising out of orders made by the Presidency Small Cause Court have always been brought in that Court and not in the High Court or the City Civil Court.
C.M.N