S SUNIL KUMAR Vs. P PRAKASH

JUDGEMENT

(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) KLT 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 ( 1956 KLT 343 : AIR 1956 TC 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 S.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 S.39 of the C.P.C. 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-s.3 of S.39 and that it should be a Court which would have jurisdiction to try the suit in which such decree was passed. It is further held that under S.12 and 13 of the Kerala Small Cause Court Act, a Court of Small Cause alone has got jurisdiction to execute the decree passed by the Small Cause Court and not the Civil Court.

(3.) S.7 of the C.P.C. came up for interpretation before a Division Bench of the Travancore Cochin High Court in Abdul Khader v. Pakiru Mohammed (1956 KLT 343 : AIR 1956 TC 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 Jella Mall's case. 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 S.7 of the C.P.C. and O.51 and held that the bar provided under the C.P.C. 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.