Dattada Bhimaraju vs Kasibotla Sreerama Sastrulu

Oldfield, J.—I agree with my learned brother''s judgment; but I desire to add that the argument based on Section 42 of the CPC depends

on the interpretation of the word ''rules'' therein as not conferring any substantive right of appeal but as referring only to the rules mentioned in

Sections 121 to 128. It is a sufficient answer to this, that Section 42 merely reproduces Section 228 of the former Code, in which no such rules

could have been in question.

The Appeal against Order must be dismissed with costs. The Civil Revision Petition which is also before us, must be dismissed, because no

question u/s 115 of the CPC is shown to arise. No order as to costs in the Civil Revision Petition.

Seshagiri Aiyar, J.

This matter arises in execution. The Subordinate Judge of Cocanada exercising Small Cause jurisdiction passed a decree on the 14th of July

1905. It was transferred for execution to the District Munsif of Ellore on the regular side. This was on the 20th of October, 1908. The last

application was on the 24th of April, .1917. On it an order to attach Immovable property was made on the 16th of August, 1917, ex parte by the

District Munsif. It was set aside on the application of the judgment-debtor on the 26th of September, 1917. On the very same day, an oral

application was made to arrest the judgment-debtor. The District Munsif was asked to allow the decree-holder to amend the execution application

by inserting the prayer for arrest. He declined to accede to the request and dismissed the petition altogether. An appeal was made to the Sub-

Court against that order. The Subordinate Judge considered that the amendment should have been allowed. He therefore set aside the order and

remanded the petition for disposal on the merits. The judgment-debtor has preferred this Second Appeal. A preliminary objection is taken on

behalf of the respondent that no second appeal lies. I think the contention is well founded.

I felt some doubt during the course of the hearing whether any appeal lay to the Sub-Court from the order of the District Munsif refusing to issue

the warrant of arrest. On further consideration I have come to the conclusion that the first appeal was properly presented, and that no second

appeal lies. It is clear that u/s 7(a)(iii) of the Code of Civil Procedure, a Court'' of Small Causes can have no power to execute decrees against

Immovable property. Its power to issue a warrant of arrest or to attach moveable properties is not affected by this sub-clause. The decree-holder

in this case, as he was desirous of getting the Immovable property of the judgment-debtor attached, had the decree transferred to the Court of the

District Munsif of Ellore. By Section 42 of the CPC in consequence of the transfer, the decree though passed by a Judge exercising Small Cause

Court jurisdiction becomes impressed with rights incident to a decree passed by the District Munsif. The words ""as if it had been passed by itself

in the first sentence of the section, show that the decree by force of its transmission acquires all the rights which a decree passed by the District

Munsif exercising original jurisdiction would have for purposes of execution. The third sentence of Section 42 makes it clear that the orders in

execution are subject to the same right of appeal as orders passed by the District Munsif exercising original jurisdiction. Mr. Somasundaram for the

respondent suggested that the clause ""shall be subject to the same rules in respect of appeal"" only refers to the procedure to be adopted and does

not confer a right of appeal. That construction would make the sentence meaningless. I am clear that by virtue of the fact that the Munsif passed

orders in execution in respect of a decree passed by the Small Cause Court, his orders became subject to appeal. The only difficulty which I find in

giving full effect to this view relates to Section 104 Clause (h) of the Code of Civil Procedure. That section enumerates the various orders which

are appealable under the Code. Clause (1)(h) says: "" An order under any of the provisions of this Code imposing a fine or directing the arrest or

detention in the civil prison of any person, except where such arrest or detention is in execution of a decree.'''' Reading it literally this clause would

mean that no appeal is provided against an order in execution directing arrest or detention of a judgment-debtor. But I do not think that is the true

construction of the clause. The exemption of orders of arrest or detention in execution of a decree is due to the fact that such orders are covered

by Section 47 of the Code of Civil Procedure. u/s 2 Clause (2) the expression '' decree '' includes the determination of any question within Section

Therefore inasmuch as the order exempted by Clause (h) acquires the superior force of a decree, it was thought desirable by the legislature to

exempt it in Section 104. Moreover Clause (2) of Section 104 provides that there shall not be a second appeal against the orders made

appealable under Clause (1). If the exemption in favour of arrest or detention in execution of a decree were not in Clause (1)(h) it would follow

that even where such orders are passed in execution of a decree of a regular Court for more than Rs. 500, no second appeal would lie from such

an order. This would make Section 104 -inconsistent with Section 47 and Section 2(2). Therefore the object of the exemption in Section 104(1)

(h) is not to make such orders unappealable but only to point attention to the fact that they are not orders of the same class mentioned in the other

sub-clauses, I am therefore of opinion that an appeal lies to the Sub-Court against the order of the District Munsif. This view is supported by a

decision of this Court in Perumal v. Venkatrama ILR (1887) Mad 130. Although that case was decided with reference to the old Small Cause

Courts Act, it seems to me that the conclusion is equally applicable to proceedings under Act IX of 1887. In Peary Lal Sing v. Radha Nath Singh

(1907) 11 C.W.N. 861, the same view was taken.

If an appeal lies, then the question is whether a second appeal is competent. That must be answered in the negative, having regard to Section

102 of the Code of Civil Procedure. Under the old Code it was held in Lala Kandha Pershad v. Lala Lal Behary Lal ILR (1898) Cal. 872 and

Harath v. Ram Sarup ILR (1890) All. 579 and Peary Lall Singh v. Radha Nath Singh 11 C.W.N. 861 that no Second Appeal lies in execution

proceedings relating to Small Cause Court decrees. The language of Section 102 is an exact reproduction of Section 586 of the old Code. See

also Mavula Ammal v. Mavula Maracoir ILR (1906) Mad. 212 For these reasons I am of opinion that the preliminary objection must be allowed

and the appeal should be dismissed with costs. I agree as to the order passed by my learned brother in the Civil Revision Petition.