GOVINDDAS Vs. PARMESHWARIDAS

JUDGEMENT

(1.) THIS revision arises out of a suit filed as far back as 1941 in the Court of the city Sub-Judge, Lashkar. The suit involved a small claim of Rs. 360/ -. It was at first filed, as stated above in the Court of the City Sub-Judge, Lashkar, on 12th november 1941. During the pendency of the suit, Act No. 4 of 1942 was passed creating Small cause Courts in the former State of Gwalior with a maximum jurisdiction of Rs. 200/ -. The suit, however, continued to be before the Sub-Judge, lashkar, and it does not appear that it made much progress. In 1949, Ordinance no. 36 of 1949 was promulgated in the State of Madhya Bharat which created a small Cause Court at Gwalior with a jurisdiction of Rs. 500/ -. The Sub-Judge, lashkar, who seems to have kept this case pending on his file all these years, transferred it to the Small Cause Court for disposal and in due course a decree was passed on 25th July 1951 decreeing the claim of the plaintiff. Against the decision an appeal was taken by the present applicant before the District Judge, gwalior. He contended, inter alia, that when the suit was filed he had a right of appeal which could not be taken away and the appeal was therefore competent. He also contended that the Small Cause Court at Gwalior had no jurisdiction to decide the case, inasmuch as the case was wrongly transferred to that Court.

(2.) IT appears that the second point was not decided, but the first was. The learned district Judge shortly stated held that under the Small Cause Courts Act no appeal lay and the appeal was therefore incompetent. On revision to the Madhya Bharat high Court, Chaturvedi J. declined to interfere and the revision-application was dismissed.

(3.) IT appears that more than one execution was taken out in respect of the decree, the first execution was taken out in 1952; its number is 574. In that execution proceeding on a notice being issued to him the judgment-debtor appeared and raised the contention that the decree passed against him was a nullity because it was passed by a Court possessing no jurisdiction in the suit. The decree-holder, it appears, allowed that execution to go by default, and no decision on the objection was made. Later, an execution application was filed, and the matter which is before us arises out of that execution application. In that execution also the judgment-debtor raised the contention that the Small Cause Court had no jurisdiction to try the case and that the decree was a nullity. The executing court decided the point against him and hence this application for revision. This case has been referred to a Pull Bench along with another Case Bhaskarrao v. Lilavatibai, civil Revn. No. 175 of 1954 : (AIR 1957 Madh. Pra. 70) (A), which we shall decide separately.