P R SRINIVASA AIYANGAR Vs. MDNARAYANA AIYANGAR

JUDGEMENT

(1.) So far as I am able to see there are no merits in these cases. But I have to deal with the question of law which is one of considerable importance and argued before me; my conclusion is that the Registrar of the Court of Small Causes had no jurisdiction to order execution of the decree, and also that he acted illegally in the exercise of his jurisdiction by directing a warrant to issue without giving the petitioner previous notice of the application. The facts necessary for the disposal of these two petitions are these. A decree was obtained in the District Munsif s Court of Mysore in 1908. It was transferred for execution to the Small Cause Court, Madras in October 1915. As the decree holder did not take steps, his first application was dismissed in November 1915. A second application was presented on the 13th December 1915, and without notice to the petitioner, the arrest of the petitioner (judgment-debtor) was ordered on the 21st December 1915; thereupon he paid the amount of the decree into court and asked the Registrar to consider his order directing his arrest and also to pay him back the money which he had deposited. The Registrar refused the application and hence these petitions to this Court. I may also say that on the refusal of the Registrar to reconsider his order, an application was made to the Full Bench of the Small Causes Court. The learned Judges who constituted the Bench held that they had no power to interfere with the order of the Registrar.

(2.) The first point argued by the learned Counsel for the petitioner is that the Presidency Small Cause Court has no jurisdiction to entertain applications for the execution of the decrees passed by a foreign court, and still less the Registrar of that Court. As regards the first of these contentions, I am unable to accept it. Under Section 44, Civil Procedure Code, the decrees passed by the Courts of a Native Prince or State in alliance with His Majesty may be executed in British India as if they had been passed by the courts of British India. Under Order 21, Rule 4, if a decree is passed outside the ordinary Original Civil Jurisdiction of the High Court, the execution of that decree within the City of Madras must be by the Presidency Court of Small Causes. It was argued before me that that provision applies only to the decrees of British Courts. But the language of Section 44 makes it clear that no distinction is drawn in this respect between the decree of British Courts and the decrees of foreign courts. My attention was drawn to Section 8 of the Civil Procedure Code and it was contended that as Section 44 of the Code is not included among the provisions made applicable to the Presidency Small Cause Court, that court has no jurisdiction to receive applications for execution from foreign courts. Section 8 is intended to be supplementary to the rules of procedure provided by the Small Cause Court Act and the rules framed thereunder. Section 8 does not prescribe by implication the entertainment of applications for execution in respect of the decrees of Foreign Courts by the Small Cause Court. I am, therefore, of opinion that if the decree had been put in motion by a Judge of the Presidency Small Cause Court, there could have been no objection to its execution. I have, however, reluctantly come to the conclusion that the Registrar has no power to issue processes in execution of a foreign decree. He is not ordinarily a court. He is invested with the powers of a court only for certain purposes and unless either under the sections of the Small Cause Courts Act or under the rules framed under those sections, the power to execute the decree of a foreign court can be spelled out, I must hold that the Registrar of the Small Cause Court has no jurisdiction to execute the decrees. Section 35 of the Presidency Small Cause Courts Act speaks of the execution of decrees passed by the Court of Small Causes and not" by the Courts of Native States in alliance with His Majesty. Under Order 12, only certain Judicial powers are delegated to the Registrar and the power to execute the decrees of foreign courts is not among them. Section 13 gives the Registrar the power to do certain ministerial acts and the power to direct the arrest of a judgment-debtor in execution cannot be regarded as a ministerial act Consequently, the Registrar of the Small Cause Court has no power to execute the decree of a foreign court. The learned. Vakil who appeared for the Counter Petitioner, suggested that the moment the decree was sent from Mysore to the Presidency Small Cause Court, it must be deemed to have become the decree of the Presidency Small Cause Court and that Section 35 of the Presidency Small Cause Courts Act applies. I am unable to agree with him. The decree that is transmitted for execution does not become the decree of the court to which it is transmitted although its powers of execution are similar to the powers conferred on it in respect of the execution of its own decrees. I must therefore hold that the Registrar had no jurisdiction to execute the decree and that the warrant which he issued for the arrest of the petitioner was ultra vires.

(3.) One other contention of the learned Vakil for the petitioner may also be mentioned and that is that the Registrar acted illegally in the exercise of the jurisdiction by directing a warrant to issue without giving notice to the petitioner. As I mentioned before, the first application was dismissed in November 1915. The present application was presented on the 13th December 1915 and on the 21st of that month, the order to arrest the petitioner was made. No notice was given to the petitioner on this application. Order 21, Rule 22 in its proviso to Sub-clause (1) says that no notice shall be necessary in consequence of more than one year having elapsed if the application is made within one year from the date of the last order against the party against whom execution is applied for. In this case, there was no order made against the judgment-debtor by the Registrar or the Court of Small Causes within a year of the 21st December 1915. Consequently, the operative portion of Sub-clause 1 applies; and it was incumbent upon the Registrar to have issued the notice to the petitioner before directing his arrest. The learned Vakil for the counter-petitioner said that the order was competent under Sub-clause 2, but that Sub-clause requires that the Court should be satisfied that in the interests of justice an order should be made without notice to the other side. The Registrar has recorded no reasons for holding that it was absolutely necessary, in the interests of justice that the arrest of the petitioner should be ordered at once. My attention was drawn also to a case decided by Ayling and Srinivasa Aiyangar, JJ., where they held that if there are no merits, the court is not bound to interfere under Section 115, Civil Procedure Code. But the order made by the Registrar goes to the very root of his jurisdiction; I am not prepared to condone the manifest illegality by saying that the petitioner had no merits. I must set aside his order; the money in deposit should be paid over to the petitioner. I make no order as to costs.