PALANI MUDALIAR Vs. KAVERI AMMAL

JUDGEMENT

(1.) This Revision Petition raises a question of the Presidency Small Cause Court's jurisdiction.

(2.) The petitioner-plaintiffs having unsuccessfully claimed certain moveables attached by order of the City Civil Court instituted a suit in that Court to establish their right to the property in dispute. This was in pursuance of the power given by Order 21, Rule 63 of the Code. The plaint was returned by the Court. I have some difficulty in understanding the reason; but apparently the learned Judge of the City Civil Court took the view that since the Full Bench in Rajammal V/s. Narayanasami Naicker 1915 39 Mad 219 had ruled that the Small Cause Court was competent to entertain such a suit, that Court was the proper Court to which the plaint should be presented. I may observe in passing that what the Full Bench decided in the particular case was that a suit by an unsuccessful party in claim proceedings in the Small Cause Court to recover property attached by order of that Court is not a suit for a declaratory decree within Section 19, Clause 8, Small Cause Courts Act, and is therefore cognizable by that Court.

(3.) The plaint was then presented to the Small Cause Court. But the learned Judge of this Court before whom the suit came, took the objection that Order 21, Rule 53, of the Small Cause Court rules of procedure, which alone gives the Court jurisdiction to entertain a suit of this kind, was confined to a suit arising out of an unsuccessful claim petition to property attached by order of this Court. He therefore ordered the plaint to be returned for presentation to the proper Court, without indicating what in his opinion that proper Court might be. I think his decision was right, but I prefer to put it on a somewhat different ground from that chosen by the learned Judge. In Rajammal V/s. Narayanasami Naicker 1915 39 Mad 219 the Full Bench referred to the ruling of the Judicial Committee in Phul Kumari V/s. Ghanshyam Misra (1908) 35 Cal 202, where it was pointed that the statutory suit given to the unsuccessful party in claim proceedings under the Code involves in every case a prayer for the setting aside of a summary order of a civil Court.