SAYED ALI Vs. SREE GOPAL CHANDRA DAS

JUDGEMENT

(1.) In this appeal facts are not complicated nor they require to be recounted in detail, but a short but important question of law in involved, in that, whether a Court of Small Causes can exercise powers under section 144 of the Code of Civil Procedure. Facts are that the plaintiff respondents got an ex-parte decree for ejectment on 27-2-76 against the tenant defendant, and in execution of the decree got delivery of possession through Court on 17-3-76. The defendant-appellant filed an application under Order 9, rule 13 of the Code of Civil Procedure to set aside the ex-parte decree which was allowed and then he filed an application under section 144 of the Code for restoration of possession to the suit premises,, but it was disallowed on the ground that the Court of Small Causes was not authorised in law to exercise jurisdiction under section 144 of the Code. On revision the learned Single Judge held that the application under section 144 was misconceived and incompetent and so dismissed the revision case.

(2.) The principal question is whether section 144 of the Code is available to a Court of Small Causes. To appreciate some provisions of the Small Cause Courts Act and Code of Civil Procedure are to be mentioned. First, to turn to some of the provisions of the Small Cause Courts Act. We find that section 33 of the Act says that Small Causes Court and Civil Court are distinct and should be always treated as different Courts; section 17 provides that the procedure prescribed in the Code of Civil Procedure, save it has been excepted by that Code and this Act, the Small Causes Court shall follow in all suits cognizable by it, the procedure prescribed in the Code of Civil Procedure, and section 16 says that suits cognizable by a Court of Small Causes shall not be tried by any other Court. To revert back to section 17 again it appears that it contemplates that final order passed by a Small Causes Court will be a decree.

(3.) Keeping these provisions of the Small Cause Courts Act in view, if we refer to the Code of Civil Procedure, we find, section 7 which has been impliedly referred to by Small Cause Courts Act, says that what has been provided in clauses (a) and (b) to that section shall not be available to a Court of Small Causes and it is to be remembered that section 144 of the Code is not one of the excepted provisions mentioned therein.