BRIJ BIHARI LAL Vs. LALTA PRASAD AND SONS

JUDGEMENT

(1.) This application has given rise to a somewhat difficult question of jurisdiction. The circumstances are that the plaintiff-applicant had obtained an ex parte decree in a Small Cause Court. That Court was subsequently abolished, and an application to set aside the ex parte decree was made to the Munsif; but the judgment-debtor did not deposit the amount of the decree or give security to the satisfaction of the Court for the performance of the decree, as he was required to do by the first proviso to Section 17, Provincial Small Cause Courts Act of 1887. The learned Munsif held that the provisions of Section 35 of the Act empowered him to proceed if the matter were one governed by the procedure for the regular Courts, and not by the special procedure laid down in the Small Cause Courts Act, and he therefore allowed the application to set aside the ex parte decree. Section 17, Provincial Small Cause Courts Act para. 1, is to the following effect: The procedure prescribed in the Civil P. C. 1908, shall, save in so far as it is otherwise provided by that Code or by this Act, be the procedure followed in the Court of Small Causes in all suits cognizable by it and in all proceedings arising out of such suits.

(2.) The present proceeding is undoubtedly a proceeding arising out of a suit which WHS cognizable by a Small Cause Court and had in fact been decided by a Court of that description. There is nothing in Section 35 of the Act which in terms modifies the provisions of Section 17, and it appears to me therefore that in the absence of authority to the contrary it must be held that any proceeding arising out of a suit which has boon decided by a Small Cause Court must be governed by the provisions of the Small Cause Courts Act.

(3.) On behalf of the opposite party I have bean referred to some authorities of this Court in somewhat analogous cases. In the cane of Sarju Prasad V/s. Mahadeo Prasad 1915 All 219, it was held that when a Munsif vested with the powers of a Court of Small Causes was succeeded by a Munsif not vested with such powers, the latter is under Section 35, Provincial Small Cause Courts Act, bound to try the suits pending on the file as regular suits and an appeal lies against his decision. In the case of Lachman Das V/s. Ahmad Hasan 1917 All 304, it was held by a Single Judge of this Court that where a Court of Small Causes had passed a decree and was then abolished, and the execution proceedings were taken in the Court of a Munsif, the Munsif's orders passed in the execution proceedings were not the orders of a Small Cause Court and were therefore open to appeal. This case is the more nearly analogous to the present one than any to which I have been referred; but it will be seen that the decision is merely to the effect that as the order passed in execution proceedings was not the order of a Small Cause Court Judge, it was open to appeal. The position in the present case is different. There is no question of whether an order passed by the Court is open to appeal. It is a question of whether the procedure in this application is to be re. gukted by Section 17, Small Cause Courts Act, or by the Civil Procedure Code. If it is to be regulated by the Small Cause Courts Act, a deposit or security was obligatory on the judgment debtor; and in my view, the wording of Section 17 of the Act shows that the procedure of the Act ought to be applied because the proceeding is one arising out of a Small Cause Court suit. I there, fore allow the application with costs, set aside the order of the Munsif and direct that the ex parte decree in favour of the applicant be restored.