JAMINIBALA DEBI Vs. KARALI PRASAD MUKHERJEE

JUDGEMENT

(1.) We are invited in this Rule to set aside an order of refusal of a District Judge to hear an appeal on the ground that no appeal lay, inasmuch as the order of the Court of first instance was made in the course of proceedings in execution of a decree made by a Court of Small Causes.

(2.) It appears that on the death of one Bhabadeb Bhutta his creditor Karali Prasad Mukherjee instituted a suit against his three infant sons and his widow. The claim was based as against the sons on the ground that they were the legal representatives of the deceased debtor and as against the widow on the ground that she had taken possession of the moveables which formed part of the estate left by the deceased The suit, which was instituted in a Court of Small Causes was decreed against the infant sons, but was dismissed as against the widow because she was not proved to be in possession of the moveables of the estate. The judgment of the Small Cause Court Judge states that as the widow was not an heir, she was not a necessary party, but for the reason that she was alleged to be in possession of a portion of the assets left by the deceased debtor. The suit was thus not dismissed against the widow on the ground that she was not a necessary party; it was tried on the merits against her and was decided in her favour, because the allegation that she was in possession of the moveables of the estate was not established by the evidence. This decree was transferred to the Court of the Munsif for execution by attachment and sale of the immoveable properties left by the deceased debtor. This order of transfer was made under Section 39, Civil Procedure Code, in view of the provisions of Order XXI, Rule 82 that an attachment of immoveable property cannot be effected by a Court of Small Causes. When the immovable properties were attached, the widow appeared and objected on the ground that she had acquired good title thereto under a conveyance from her husband dated the 23 January 1919. This objection was registered as a case under Section 47, Civil P. C.. There was a regular investigation and the Court came to the conclusion that the objection was not sustainable. The widow thereupon preferred an appeal to the District Judge. The District Judge has refused to entertain the appeal on the ground that no appeal lay inasmuch as the decree under execution bad been passed by a Court of Small Causes. This view is clearly erroneous.

(3.) Section 27 of the Provincial Small Cause Courts Act is in these terms; "Save as provided by this Act, a decree or order made under the foregoing provisions, of this act by a Court of Small Causes shall be final" The orders thus made final are orders made by a Court of Small Causes; so that if this decree had been executed by the Court of Small Causes itself, the order in execution would have been final: Raj Kumar Lal V/s. Bulaki Miyan 42 Ind. Cas. 467 : 3 P.L.W. 146, Alogamuthu Pillai V/s. Devasagaya Fernandez 32 Ind. Cas. 284. 19. M.L.T. 146 : 3 L.W. 34 : (1916) 1 M.W.N. 78. When, however, the decree has been transferred to the ordinary Court to be executed as if it were a decree made by that Court., the orders made in execution are appealable in the same way as orders made in execution of decrees passed by that Court; this is in accordance with the view adopted in Atwari V/s. Moinu Lal 1 Ind. Cas. 553 : 31 A. 1; A.W.N. (1908) 254 : 5 A.L. J.612, although a second appeal would be barred under Section 102, Civil P. C.. We hold accordingly that the ground assigned by the District Judge in support of his order of refusal to entertain the appeal cannot be upheld.