ASHOK KRISHNARAO THUGAONKAR Vs. PANNALAL SUKHLAL SHIVHARE

JUDGEMENT

(1.) THE present order shall govern the aforementioned matters. A common question has arisen as to whether against an order passed in distress warrant proceedings, an appeal under section 26A of the Provincial Small Cause Courts Act, 1887(hereinafter referred to as 'the Act' for the sake of brevity) is possible or whether without preferring an appeal, a revision straightaway is maintainable to this Court. If the appeal is maintainable, then obviously, by-passing such appeal, filing of the civil revision could not be possible. It will, therefore, be essential to see whether an appeal against the decision is possible.

(2.) PRESENTLY, the subject of distress warrant proceedings is covered by Chapter IVA of the Act. This remedy of distraining the movables of the tenant for rent which is due for more than three months and less than twelve months is available only in the area within the local limits of the jurisdiction of a Small Cause Court and is restricted to that Court only, meaning thereby that a Judge or a Court other than the Small Cause Court, who is invested with the jurisdiction of the Small Cause Court, does not have a power or authority to issue such distress warrant. Section 27A of the Act is clear enough. This Chapter is a complete Code in itself in respect of the distress warrants. The Chapter provides, inter alia, that a fifteen days notice is a must before making an application for distress warrant. The Chapter further provides for the time for distress, the places that the bailiff may force open, the property which can be seized as also the property which is exempted from being seized. The further provisions in the Chapter also deal with the further procedure after distress, i.e., making inventories, making applications to discharge or suspend the warrant, claim of the strangers to the goods distrained. Under section 27M, there is a power given to the District Court to transfer the cases to itself where the subject matter of the dispute exceeds the limits of the pecuniary jurisdiction of the Court of Small Causes. The further procedure of the movable properties so distrained etc., is also dealt with in the Chapter; while section 27R specifically provides that no distress shall be levied for the arrears of rent except under the provisions of section 27A and, in fact, any person other than a bailiff, a Nazir or an officer of the Court, levying or attempting to levy any such distress, shall be liable for punishment on his conviction. In short, the Chapter is a complete Code in itself. This Chapter was introduced by section 7 of the Bombay Act 87 of 1958. Before this introduction, such distress was unknown to those areas which were not covered by the Presidency Small Cause Courts Act, 1882. Sections 50 to 68 in Chapter VIII deal with the subject of distress in Presidency Small Cause Courts Act and though this remedy to recover the rent from the tenants was available only to the landlords within the ordinary original civil jurisdiction of High Courts of Calcutta, Bombay and Madras, right from the inception of the Presidency Small Cause Courts Act, i.e., from 1882, this remedy was not available to the other landlords outside the original civil jurisdiction of the High Courts. Even though the Act (Provincial Small Cause Courts Act) was enacted in 1887, which established the Small Cause Courts even outside the areas covered by the original civil jurisdiction of the High Courts, yet till 1958 when Chapter IV-A was introduced, the remedy of distress warrants was unknown to the landlords and was not within the realm of the Small Cause covered by the Act.

(3.) THUS, an appeal, which was hitherto unknown against the decrees and orders passed by the Small Cause Courts was introduced for the first time by way of section 26A-(1). The other two sections in this Chapter being 26B and 26C are more or the less not relevant for the purposes of the present controversy. Now, therefore, the position is clear that where a Small Cause Court exercises a jurisdiction under section 26 and passes a decree or order, the appeal would lie to the District Court. The question, therefore, is as to whether an order passed by the Small Cause Court under Chapter IVA can be said to be an order exercising the jurisdiction under section 26 and, therefore, open to an appeal under section 26A-I.