KADAMBINI DASI Vs. DAYARAM DAS

JUDGEMENT

(1.) The question of the precise scope of Section 331 of the Civil Procedure Code of 1882, which calls for decision in this appeal, is one of some nicety and apparently of first impression. The facts so far as it is necessary to state them to explain how the question arises are not the subject of controversy between the parties. The appellant, in execution of a decree for possession of land obtained by him was resisted by the defendant with the result that she was unable to recover possession of the property decreed to her. The claim; of the person who offered the resistance to delivery of possession, was thereupon numbered and registered as a result between the decree-holder as plaintiff and the claimant as defendant under Section 331 of the Code. One of the objections of the claimant defendant was, that the Court was not competent to investigate the claim, as the value of the property in dispute exceeded Rs. 2,000 the limit of the pecuniary jurisdiction of the Court. The Court of first instance investigated this preliminary issue, and came to the conclusion that the value of the disputed property, was not less than Rs. 3,500, in this view the Munsif held that the suit was beyond his pecuniary jurisdiction, and dismissed it. Upon appeal, the Subordinate Judge affirmed the finding as to the value of the property, and held that the suit had boon rightly dismissed. The plaintiff decree-holder has now appealed to this Court, and on his behalf, it has been contended that when a claim has been preferred under Section 331, it must be investigated by the Court executing the decree, and that no question of valuation arises for consideration, In support of this proposition, reliance has been placed upon the decision in Sithalakshmi V/s. Vythilinga 8 M. 548, and Damul Dharma V/s. Shripat Narayan 6 Bom. L.R. 301. It has been argued on the other hand, that as the claim under Section 331, is directed to be numbered and registered as a suit between the parties and the Court is authorised to investigate the claim in the same manner and with the like powers as if a suit for the property had been instituted by the decree-holder against the claimant, under the provisions of Chapter V of the Code, it is open to the claimant to raise a question of valuation with a view to establish that the value of the disputed property is beyond the limits of the pecuniary jurisdiction of the Court. This proposition has been sought to be supported by a reference to the decisions in Nasir Ali Fakir Vs. Meher Ali 22 C. 830, Muttammal V/s. Chinnan 4 M. 220 at p. 228 and Moulakhan V/s. Gorikhan 14 B. 627. None of the cases mentioned in the argument on both sides, is directly in point, but there are dicta in two of the cases, one of which justifies the contention of appellant and the other that of the respondent. The solution of the question, which is by no means free from difficulty, must, therefore, depend mainly upon an interpretation of the statutory provisions on the subject.

(2.) Section 331 provides that the claim is to be numbered and registered as a suit and the Court is directed to proceed to investigate the claim in the same manner, and with the like powers as if a suit for the property had been instituted by the decree-holder against the claimant under the provision of Chapter V of the Code. Upon the investigation, the Court shall pass such orders as it thinks fit for executing or staying execution of the decree, and every such order has the same force as a decree and is subject to the same conditions as to appeal or otherwise. Before we examine the judicial decision to which our attention has been invited it is worthy of note, that there have been material alterations in the statutory provisions on the subject from time to time. In Act VIII of 1859, Section 229 was closely similar to Section 331 of the Code of 1882. Under the Code of 1877, however, the claim had to be investigated as if a suit had been instituted under Section 9 of the Specific Relief Act, and the powers of the Court were confined to an enquiry into the question of possession. The Code of 1877 was, however, amended by Section 52 of Act XII of 1879 and subsequently, the Code of 1882 enlarged the scope of the investigation and any question of title, arising between the parties regarding their right to possession might be finally determined as the order for execution or stay of execution had the force of a decree, and the plaintiff had no right to bring a fresh suit, if the decree was against him. Under Section 331, therefore, as it stood in the Code of 1882, the position briefly is, that as soon as a claim is preferred by a person who offers resistance or obstruction to delivery of possession, the claim is to be registered as a suit, and the Court is to proceed to investigate the claim. There is no room for reasonable doubt that the Legislature contemplated that the proceedings would go on where they were initiated. It is a contradiction in terms to say that the Court is to proceed to investigate the claim, and then to hold that the Court need not investigate the claim at all but may dismiss the suit of the plaintiff on the ground that the value of the disputed property, exceeds the limit of the pecuniary jurisdiction of the Court. Section 15 of the Civil Procedure Code provides that every suit shall be instituted in the Court of the lowest grade competent to try it, while Section 19 of the Bengal Civil Courts Act provides that a Munsif can take cognisance of a suit of which the value does not exceed Rs. 1,000 or under a special order, Rs. 2,000. The contention on behalf of the respondent is in substance that Section 331 must be taken to be controlled by Section 19 of the Bengal Civil Courts Act. We are unable to accept this contention as well founded. The plain language of Section 331 justifies the conclusion that a special jurisdiction is conferred upon the execution Court to investigate the claim preferred by the person who offers resistance or obstruction to the execution. As pointed out by the majority of the learned Judges who decided the case of Sithalakshmi V/s. Vythilinga 8 M. 548 the object of the Legislature was to impose on the Court which has issued the writ for delivery of possession the duty of investigating the bona fides of the claim advanced by the person resisting execution of the warrant. The language of the section is imperative, and we must hold that where a duty is imposed on a Court, there is also conferred on it a jurisdiction to discharge such duty. No doubt, in that very case Mr. Justice Muthuswami, Ayyar, held that although Section 331 is not controlled by Section 15 of the Code, yet it must e taken to be controlled by the provisions of le Civil Courts Act, in other words, although Subordinate Judge may be competent to investigate a claim in respect of property the value of which does not exceed the limit of the pecuniary jurisdiction of a Munsif, a Munsif is incompetent to investigate a claim in respect of property the value of which exceeds the limit of his pecuniary jurisdiction. With all respect for the opinion of that eminent Judge, we are unable to adopt as well-founded the distinction suggested by him. If Section 331 is construed as a provision by which special jurisdiction is conferrred upon the execution Court, there does not appear to us to be any good reason why the exercise of such jurisdiction should be restricted to one class of exceptional cases only and not extended to the converse class." It is possible that the particular contingency which has happened in the case before us, was not in the contemplation of the framers of the Code; but the language they have used is manifestly comprehensive enough to cover it. The learned Vakil for the respondent has contended, that if this view were adopted, the result might be anomalaus, and might prejudice a claimant whose claim in respect of a property of considerable value, may thus be investigated by a Court of inferior jurisdiction. To this argument two answers may be given; first, that no consideration of possible anomaly in the result should be allowed to prevail in the interpretation of a statutory provision the terms of which are reasonably plain and are clearly mandatory; secondly, that no question of possible hardship or injustice arises here, as it is not obligatory upon the claimant to prefer a claim under Section 331: he may allow the decree to be executed and then bring a suit for recovery of possession of the property which he claims as his own in what he considers to be the Court of competent jurisdiction. We may further add that if a claim is investigated under Section 331 by a Court of inferior jurisdiction in respect of property the value of which exceeds the limit of its pecuniary jurisdiction it is by no means clear that the decision would operate as res judicata in a subsequent title suit; for Section 13 of the Code bars the trial of a subsequent suit by reason of the decision in a former suit only when such decision has been given by a Court of jurisdiction competent to try the subsequent suit. We must hold, therefore, that the claim is to be investigated by the execution Court, and this view is supported by the observation of Jenkins, C.J., in Damul Dharma V/s. Shripat Narayan 6 Bom. L.R. 301. It is farther worthy of observation that this conclusion is not negatived by the provision that the claim is to be registered as a suit, and is to be investigated in the same manner, and with the like powers as if a suit for the property had been instituted under the provisions of Chapter V. This provision merely implies that the investigation is to be held in the manner provided for the trial of suits, that is, it is not to be a summary investigation, further the Court is to investigate, with the like powers as if a suit had been instituted that is for the purpose of enforcing the attendance of parties and witnesses and for similar purposes. It is fairly clear, that the proceeding is not in every respect identical with a suit, because if that had been the effect of the first paragraph of Section 331, it would have been needless to provide in the second paragraph, that the claim is to be investigated in the same manner and with the like powers as if a suit had been instituted. It would further have been superfluous to add in the third paragraph that the order passed would have the same force as a decree, and is to be subject to the same conditions so as to appeal or otherwise. In our opinion it is reasonably plain that although the investigation is to take place as in a suit, the proceeding is not in all respects identical with a suit, and that whatever the true nature of the proceeding may be, there is to be an investigation into the claim by the execution Court; the Legislature could never have intended that the investigation into the claim, might be defeated by a preliminary objection as to the pecuniary jurisdiction of the Court.

(3.) The cases upon which reliance has been placed on either side, do not require minute examination, as they do not directly touch the question in controversy. They relate principally to questions of the competency and forum of appeals against the final order made by the investigating Court. Thus in the case of Nasir Ali Fakir V/s. Meher Ali 22 C. 830, it was ruled, that an order under Section 331 is appealable, even though the proceedings originated from a case under Section 9 of the Specific Relief Act. Again the case of Moulakhan V/s. Gorikhan 14 B. 627, deals with the question of the forum of appeal whether the forum is to be determined with reference to the value of the original suit or of the subject-matter or property in dispute. The answer to the question of the competency or forum of an appeal has been made in these and other cases to depend upon the question of the true character of a proceeding under Section 331 namely, whether it is to be deemed as a mere continuation of the original suit, or as an independent proceeding. This aspect of the matter, however, has obviously no direct bearing upon the question now in controversy between the parties because whatever the true nature of a proceeding under Section 331 may be, it is, in our opinion, plain from the language of that section, that the investigation is to be held by the execution Court, irrespective of the value of the property. We may add that this question cannot arise for consideration under the Code of 1908, as the provisions of Order 21, Rule 99 are of a completely different character from those of Section 831 of the Code of 1882.