AMIRTHA NADAN Vs. INNASI MUTHU NADAN

JUDGEMENT

(1.) The facts necessary for the disposal of this C.M.S.A. are as follows;--The respondent obtained a money decree in C.S. No. 53 of 1923 in the Village Court of Lingampatti against the appellants. That decree was sent for execution to the District Munsif's Court of Koilpatti and received there on 13 February, 1925. E.P. No. 539 of 1925 presented in that Court was dismissed for failure of prosecution. A fresh E.P. No. 383 of 1926 was put in asking for attachment and sale of immoveable property. That was treated by the District Munsif's Court as an execution petition on the original side and immoveable property was attached and sold. The sale was confirmed on 22nd February, 1927. The appellants applied under Order 21, Rule 90, Civil Procedure Code, to the District Munsif's Court to set aside the sale because of irregularities and the sale was set aside. The respondent appealed to the Sub-Court, Tuti- corin, which set aside the order of the District Munsif and maintained the sale. The appellants have come up here in Second Appeal.

(2.) Clearly no Second Appeal lies and the appeal is not maintainable as such. The appellants asked us to treat this as a civil revision petition raising a question of jurisdiction, viz., whether the District Munsif had any jurisdiction to execute the decree on the original side at all, and we have had this point, which is not free from difficulty, argued before us. It was taken for the first time in this Court.

(3.) The decision of the point rests on the interpretation of Section 66 of the Village Courts Act (I of 1889). The section as it stands empowers the District Munsif to whom a Village Court- decree is transmitted for execution to execute it "as if it were a. decree passed by himself." This phrase is ambiguous. It may mean, execute the decree as if this particular decree was a decree signed by him and not by the Village Court, or, it may mean, execute the decree with all the powers of execution which a District Munsif possesses to execute any decree passed by him. The first meaning would restrict the execution to the manner under which a Small Cause decree can be executed since the decree on the face of it is a Small Cause decree. The second meaning would allow the decree to be executed also in the manner in which an original side decree is executed. The appellants contend in favour of the first meaning and the respondent in favour of the second. The appellants refer to the definition, given in Section 5 of the Act, of the words "District Munsif." That definition originally was "The District Munsif within the local limits of whose jurisdiction the village is situate." That definition was amended by Section 4 of Act II of 1920 by the addition of two provisos, the second of which is: Provided further that if in any area the District Munsif docs not exercise Small Cause jurisdiction and a separate Court of Small Causes has been established the Judge of such Court shall be deemed to be the District Munsif.