NARAYANAN Vs. CINEMA EQUIPMENT CO

JUDGEMENT

(1.) The Madras Small Cause Court transferred three suits to the court of the Munsiff at Pathanamthitta, for execution, under the provisions of S.31 the Presidency Small Cause Courts Act, 1882. A question of limitation for execution of the decree was raised before the latter and was answered against the judgment debtors in the three suits. The appeals preferred against the orders of the execution court before the court of the Subordinate Judge of Kottarakara, were held to be not maintainable as they were made in execution of small cause decrees, and were therefore ordered to be returned for presentation to the proper court. These three petitions are to revise the orders of the Subordinate Judge.

(2.) The relevant part of S.31 of the Presidency Small Cause Courts Act reads:--

(3.) In Ponnappa Reddi v. P. Thiruvengada Pillai & Co., AIR 1925 Mad.1179 , a division bench of the Madras High Court said, that the moment the Civil Procedure Code is applicable to the proceedings in a court, unless some portions of it are exempted by a special rule or enactment from being applicable to the proceedings of such court, the whole Code is applicable and a party has the right of appeal which that Code gives. There is, therefore, no substance in the contention that the appeal by the decree holders was incompetent. My attention was invited by the learned counsel for the respondent decree holder to the opinion delivered by a full bench of the Madras High Court in Bava C. Gopalaswami Mudaliar v. The Abhisheka Kattalai, AIR 1950 Mad. 504 . The question which was referred to the full bench was whether the court to which a decree of the Small Cause Court was transferred, had jurisdiction to decide whether execution was barred by limitation under S.48 of the Civil Procedure Code or not. The full bench held, that S.48 lays down only a rule of limitation for execution and does not relate to procedure. Art.182 of the Indian Limitation Act has provided for the execution of a decree or order, not provided f or by Art.183 or by S.48 of the Civil Procedure Code, 1908. The operation of S.48 to Small Cause decrees is. excluded by S.8 of the Civil Procedure Code. Though S.47 C.P.C. also is excluded, it is taken in by the clause which has saved S.31 of the Presidency Small Cause Courts Act for such proceedings. The decision of the full bench referred to above does not apply where the question has to be determined by the execution court as a part of the procedure relating to execution of decrees. In the case of Small Cause decrees the right of appeal in similar circumstances is excluded by S.7 of the Civil Procedure Code, which declares that S.96 of the Civil Procedure Code does not apply to such cases. S.115 C.P.C. also is excluded, but a right of revision is provided for by S.22 of the Kerala Small Cause Courts Act, 1957.