PATHUMMAL Vs. KRISHNARU

JUDGEMENT

(1.) In this Second Appeal preferred by the defendant in the case he has questioned the correctness of the view taken by the lower court that his objection to the executability of the decree is unsustainable. The suit was for recovery of arrears of jenmikarom due in respect of the plaint property for the period from 1110 to 1115. The amount claimed by way of such arrears came to a little less than RS.100/-. The District Munsiff of Attingal entertained the suit as an original suit and passed a decree in favour of the plaintiff. According to the defendant, that court had no jurisdiction to entertain the suit and hence the decree in the case is a nullity and cannot be enforced against him. This contention is based on the provisions contained in S.33 of the Travancore Jenmi and Kudiyan Act, which prescribe a summary procedure for the recovery of arrears of jenmikarom falling within certain specified limits. These provisions are as follows:-

(2.) The claim in the present case was within the limit prescribed by the section and hence the Munsiffs Court could normally have entertained the claim as an original suit but for the provision contained in S.33 of the Jenmi and Kudiyan Act. It is clear from a reading of that section that it only prescribes a summary procedure for recovery of claim on account of the jenmikaroms not exceeding Rs. 100. The section does not expressly prohibit the entertaining of such claims as original suits. In fact there is nothing the S.33 of the Jenmi and Kudiyan Act to indicate even by way of implication that by virtue of that section there has been an ouster of the ordinary jurisdiction of the Courts. The exercise of such jurisdiction in respect of a claim for which a summary procedure was prescribed by S.33 of the Jenmi and Kudiyan Act could only be an irregularity. In an appeal or revision against the decree passed in violation of the summary procedure prescribed by S.33, the irregularity could be set right by directing a retrial strictly in accordance with the procedure prescribed by the section. But where there has been no such appeal or revision and the decree has become final the executing court cannot ignore that decree as a nullity since it cannot be said that there was a total absence of jurisdiction for the Court to pass the decree in question.

(3.) A similar question arose for consideration in Raman Kumaran v. Padmanabhan Mallan (6 Travancore Law Journal 101). That was a case where the subject matter of the suit had to be dealt with by the Munsiffs Court as a small cause suit in the manner prescribed by S.13 of the Civil Courts Act (Act II of 1084). But as a matter of fact the Munsiff had entertained the claim as an original suit and had passed a decree. In considering the question of the enforceability of that decree, it was ruled that S.13 of the Civil Courts Act merely regulated the procedure to be adopted in the adjudication of certain classes of suits, and did not take away the jurisdiction of the Munsiffs to try them as original causes, and that therefore the decision of the suit by the Munsiff as an original cause was valid and operative. The effect of a decision passed in similar circumstances has been considered by other High Courts also. In considering the result of the failure to comply with the mandatory provision contained in S.16 of the Provincial Small Cause Courts Act (1887) it was ruled by the Bombay High Court in Jodha v. Maganlal (AIR 1930 Bom. 80) that the failure to comply with S.16 is merely a defect in procedure in proceeding in a court other than the Small Cause Court having jurisdiction to try the case, but that does not mean that the court had no jurisdiction to try the suit. Unlike the directive provision contained in S.33 of the Travancore Jenmi and Kudiyan Act, the provision contained in S.16 of the Provincial Small Cause Courts Act is prohibitive in its character and it is as follows:-