Deno Nath Batabyal v. Adhor Chunder Sett

Maclean, C.J:— This is a suit to enforce a mortgage to secure Rs. 1,000, the property mortgaged being 3 tiled huts, situate in Calcutta. The mortgagor does not defend the suit. The other Defendants, the two Setts, obtained a money decree in the Small Cause Court against the mortgagor, and in September 1897 caused the said huts to be attached.

The Plaintiff, as mortgagee, filed a claim in the Court of Small Causes and that claim was dismissed on the 30th November 1897. On the hearing of that claim the Court of Small Causes found that the mortgage was not a genuine one.

By consent, the properties have been sold, and the sale proceeds have been paid into Court to the credit of this suit.

The Defendants, the Setts, contend that under the above circumstances and under sec. 37 of the Small Cause Court Act (XV of 1882), the order of the 30th November 1897 is final and conclusive between the parties and that the matter is res judicata between them.

To this the Plaintiff replies that the Court of Small Causes had no jurisdiction to try the question of the validity of the mortgage, as it was a mortgage of immoveable property, and that even if it had, sec. 37 would not apply, as the order was not made in a suit.

The latter question does not arise, if the former be answered in the affirmative. The learned Judge in the Court below has held that the Small Cause Court had jurisdiction to try the question of the validity of the mortgage, that the order was one made in a suit within the meaning of sec. 37, that the matter is res judicata as between the parties and has dismissed the suit with costs as against the Defendants, the Setts, but has allowed the Plaintiffs to proceed as against the mortgagor. Hence the present appeal by the Plaintiff.

I will first deal with the question of jurisdiction.

Tiled huts are immoveable property. The Small Cause Court has no jurisdiction over immoveable property in Calcutta. Under sec. 19 that Court has no jurisdiction over (f) suits for the foreclosure or redemption of a mortgage of immoveable property (g) suits for the determination of any other right to or interest in immoveable property. Whence then arises the jurisdiction? We are told it springs from sec. 28 of the Presidency Small Cause Court Act, which runs as follows:—

“When the judgment-debtor under any decree of the Small Cause Court is a tenant of immoveable property, any thing attached to such property, and which he might before the termination of his tenancy lawfully remove without the permission of his landlord, shall, for the purpose of the execution of such decree, be deemed to be moveable property, and may, if sold in such execution, be severed by the purchaser, but shall not be removed by him from the property until he has done to the property whatever the judgment-debtor would have been bound to do to it if he had removed such thing.”

Here undoubtedly the judgment-debtor under the decree of the Small Cause Court was a tenant of immoveable property, the tiled huts were attached to that property, he might lawfully have removed them before the termination of his tenancy and without the permission of his landlord. What then is the consequence flowing from that condition of circumstances having regard to the words that “for the purpose of the execution of such decree,” the tiled huts “shall be deemed to be moveable property.” It will be noticed that they are not to be deemed to be “moveable property” for all purposes, but merely for the purpose of the execution of the decree. We must surely read these words in conjunction with sec. 19. I think they only mean that, as between the judgment-debtor and the judgment-creditor property of this particular class—which is common in Calcutta—shall for the purposes of the execution of the decree, be deemed to be moveable, in order that the Small Cause Court may, in relation to such class of property, execute its own decrees, instead of transferring them for execution, as in the case of immoveable property generally to the Civil Court for the purposes of execution. This view amply satisfies the language of the section, and renders it consonant with sec. 19. I can scarcely think that the legislature would have used the language—the guarded language—of sec. 28 if it had intended that for all purposes, including that of conferring jurisdiction on the Small Cause Court, tiled huts were to be deemed to be moveable property, or that section contemplated the Small Cause Court dealing in execution proceedings with questions of title or determining any right or interest in that class of immoveable property known as tiled huts, at any rate as between the attaching creditor and the mortgagee of the judgment-debtor. It would, I consider, be a strong thing to say that this section authorized the Small Cause Court to decide upon the validity of a mortgage of property which primâ facie is immoveable, as between the attachment creditor and the mortgagee of the judgment-debtor, and which is only to be deemed “moveable” for a limited purpose. The words are not “for the purpose of deciding all questions arising in the execution of such decree.” This, in effect, is how we are invited to construe them: and this apparently is the construction adopted by the learned Judge in the Court below. If this were so the Court would have jurisdiction to decide upon the validity of a mortgage of tiled huts for a sum exceeding in amount the pecuniary value prescribed by the Act, although the amount in suit in the Small Cause Court might be within that limit.

The point we are now discussing did not, apparently, arise in the case of Ismail Solomon Bhamji v. Mahomed Khan, no question as to the jurisdiction of the Small Cause Court to decide the claim in that case is referred to.

In my opinion the Small Cause Court in this case had no jurisdiction to go into the question of the validity of the Plaintiff's mortgage, it being a mortgage of immoveable property, and if it had no jurisdiction, neither the Plaintiff nor the Defendants, either or both, could, by consent or otherwise, give it jurisdiction.

Nor do I think the Plaintiff is estopped from now saying that the Small Cause Court had no jurisdiction to deal with the matter, because, under wrong advice, he originally filed a claim in that Court. When this claim was filed the Court ought to have said it had no jurisdiction to deal with the matter and have refused to do so, leaving the Plaintiff to take such other proceedings as he might be advised.

In this view it becomes unnecessary to say whether or not the order made by the Small Cause Court was final and conclusive under sec. 37 of the Act.

The appeal must be allowed and the case remitted for trial on the merits to the Court below. The Respondents must pay the costs of the appeal. The costs already incurred in the lower Court will be dealt with by the learned Judge who tries the case under this remand.

Macpherson, J.:— I am of the same opinion.

Hill, J.:— I am also of the same opinion.

Messrs Thakur & Bysack, Attorneys for the Appellant.

Babu Kwnud Nath Ganguly, Attorney for Respondents.

J.C

Appeal allowed.