KOTHANDARAMA CHETTIAR Vs. ANNAMALAI PILLAI

JUDGEMENT

(1.) The question referred for the opinion of the High Court by the District Munsif of Ariyalur is whether a Court exercising the jurisdiction of a Small Cause Court has power to attach immoveable property before judgment under Order 38, Rule 5 of the Civil Procedure Code.

(2.) The Civil Procedure Code of 1908 is made applicable to all Courts of Civil Judicature unless the whole or portions of it are declared not applicable to any Court or the jurisdiction of any Court. Section 7 enacts that certain provisions of the Civil Procedure Code shall not extend to Courts constituted under the Small Cause Courts Act, 1887, or to Courts exercising jurisdiction of the Court of Small Causes under that Act. Under Order 50 it is provided that certain provisions of the Civil Procedure Code shall not extend to Courts constituted under the Provincial Small Cause Courts Act, or to Courts exercising jurisdiction of the Court of Small Causes under that Act. Order 38 is not one of the orders mentioned in Order 50. Order 38 of the Civil Procedure Code is, therefore, applicable to the Court of Small Causes or Court exercising small cause jurisdiction. Under Order 38, a Court is empowered to attach before judgment moveable and immoveable property. It has also power to arrest the defendant before judgment, if proper cause is shown. So far as this Presidency is concerned, the jurisdiction of a Small Cause Court or a Court exercising small cause jurisdiction to attach before judgment moveable property and to arrest before judgment the defendant for proper cause shown, has never been questioned.

(3.) The question is whether under the present Code, the Court of Small Causes or a Court exercising small cause jurisdiction has power to attach before judgment immoveable property. According to the present Civil Procedure Code, Order 38 is applicable to all Courts, unless the jurisdiction under Order 38 has been specifically taken away by the Civil Procedure Code or any other enactment. There is nothing in the Civil Procedure Code of 1908 to show that Order 38, Rule 5 is not applicable to a Court of Small Causes or Court exercising small cause jurisdiction. Under the Civil Procedure Code, 1882, the Small Cause Court was not given jurisdiction to attach immoveable property before judgment. Schedule II of that Code specifically took away the jurisdiction of the Court of Small Causes to attach immoveable property before judgment. It made Chapter XXXIV corresponding to Order 38 applicable to the Court of Small Causes with the reservation that it was not to apply to the attachment of immoveable property. Under Section 5 of the Code of 1882, only certain specified portions were made applicable to Courts of Small Causes constituted under Act XI of 1865 and to all other Courts except the Presidency Towns Small Cause Courts exercising the jurisdiction of a Court of Small Causes. There seems to be a distinct departure in the present Civil Procedure Code from the policy of the Code of 1882. Under the Code only certain specified portions of the Civil Procedure Code were made applicable to Small Cause Courts and Courts exercising small cause jurisdiction. The present Code is made applicable to all Courts of civil jurisdiction except such portions of the Code as are specifically stated to be not applicable to any Court or to the jurisdiction of any Court.