SADEK ALI Vs. SAMED ALI SERANG

JUDGEMENT

(1.) This is an appeal by the defendant in an ejectment suit. The defendant's defence was a denial of the plaintiff's title. The plaintiff claimed title as purchaser at an execution sale against one Majammil Mea under a Small Cause Court decree for money obtained under the Provincial Small Cause Courts Act. It appears that in the Small Cause Court at Sealdah he obtained an attachment of the land now in suit before judgment, that there was an investigation of claim held under Order 21, Rule 63, C.P.C, that the claimant succeeded and that the plaintiff then brought a suit to establish the right of his judgment-debtor, but that suit was withdrawn. Later the decree was transferred to the ordinary Civil Court; the property was attached and sold to him ignoring the previous claim case.

(2.) The Munsiff held that the Small Cause Court had power to attach immovables before judgment and to decide the claim case. Accordingly he dismissed the plaintiff's suit holding that the plaintiff had no title. The learned District Judge held that the Small Cause Court had no such power and that the proceedings which purported to have been taken under Ordeal, Rule 63, C.P.C., were ultra vires. Accordingly he remitted the suit for retrial to the First Court on the other issues. The only point made by the learned Vakil for the defendant-appellant is that under the Code of 1908, Provincial Small Cause Court has power to attach immovable property before judgment and to decide a claim case thereon. This matter has been elaborately argued before us. It is quite clear that the proper method is first to examine this matter on the face of the Code and of the Provincial Small Cause Courts Act (IX of 1887). So far as the latter Act is concerned, it is only necessary to note that by the second schedule great care has been taken to exclude from the cognizance of the Small Cause Court all suits in respect of immovable property, whether for possession or declaration or partition or otherwise however, with small exceptions as regards certain classes of rent suits. In effect, right to, or interests in, immovable property are elaborately excluded; but as questions of this character may arise incidentally in suits, for example, for money, a facultative provision is made by Section 23 enabling the Small Cause Courts to send the matter to ordinary Civil Court, but not obliging it to do so. Section 17 of this Act deals with procedure. It is the only section applying anything in the Code to Small Cause Courts. The provisions in the Code itself are directed entirely to excluding certain powers of the Court from, application to Small Cause Courts. The provisions of the Code of 1882 specified in the second Schedule "so far as those chapters and sections are applicable" were made to obtain in the Small Cause Court by virtue of Section 17. They include chapters 19 and 34, "execution" and "arrest and attachment before judgment." In each case the words "except as regards immovable property" are inserted as a qualification in the second schedule itself. In form Section 17 is entirely inapposite how. Since 1908 it must be taken by virtue of Section 158 of the Code to refer to Section 7 and Order 50 of the Code of 1908. By Section 7 of the present Code so much of the body of the Code as relates to certain things is declared not to extend to Small Cause Courts namely, suits excepted from their cognizance execution of decrees in such suits and the execution of decrees against immovable property. Also certain sections are made inapplicable including Secs.94 and 95 so far as they relate to injunctions and interlocutory orders. This provision is badly drafted. Section 94 appears to refer entirely to interlocutory orders and even calls them so but the parts of this section intended to be excluded are apparently Clauses (c) and (e). Clause (b) is not excluded by the words of Section 7 Kumud Behary Pal V/s. Hari Charan Sirdar (1919) 46 Cal. 717 and it can certainly take effect as regards movables. The actual words of the clause however are "order the attachment of any property," Still Section 94 only confers powers of any sort "if it is so prescribed" which means that unless the power is given by the orders in the first schedule it is not in existence. It is fairly clear that we must therefore go to the schedule which by Order 50 declares that certain provisions of the schedule shall not extend to Provincial Small Cause Courts. This repeats the matters mentioned in the first half of Section 7 and adds two new matters. It then mentions certain rules and orders specifically and declares them also to be inapplicable to Small Cause Courts. It may be noticed that whereas by Secs.7 and 94 a Provincial Small Cause Court cannot grant a temporary injunction, Order 39, Rule 1 is not expressly mentioned in Order 50. Order 50 is not, it would appear, drafted either on the principle of repeating every exclusion made by Section 7 or of not repeating any such exclusion. Further in Order 16, Rule 10, the power of compelling the attendance of a witness by attachment of his property is qualified by the proviso "that no Court of Small Causes shall make an order for the attachment of immovable property." In these circumstances, the question seems to turn on the exact implication of the exclusion from the Small Cause Court powers of "the execution of decrees against immovable property in Section 7 and Order 50. There can be no doubt that the Order 38 (attachment before judgment) is contrasted with and distinguished from attachment of property in execution, of a decree". Nor can it be doubted that there is an important difference between these two things : see Basiran V/s. Kattyayani [1911] 38 Cal. 448 though it may be doubted whether the difference is really fundamental since attachment in execution is a step taken to crystallise the creditors rights and prevent loss of the property prior to sale; attachment before judgment is also for the purpose of preservation so far as the plaintiff is concerned.

(3.) Two views have been taken. The District Judge has adopted the view slated in Woodroffe on the Civil Procedure Code. That is, in effect, the principle applied in Madras to the Code of 1859 under Act XI of 1865 that "a Court which, cannot attach primarily in execution of its decree cannot attach in anticipation of it" : Marthamma V/s. Kittu Sheregara [1871] 6 M.H.C.R. 91.