G. Abdul Khader Sahib vs G. Chinniah Naidu

Horwill, J.—The respondent held a decree in this Court for Rs. 5,000 odd against the petitioner; and he was desirous of executing it for

about Rs. 600 against the sum of money lying to the credit of the petitioner in the Court of Small Causes, Madras. He got, it attached by this

Court, but instead of getting the money transferred to this Court and then proceeding against that money in this Court, he got an ex parte order

transferring his decree to the Court of Small Causes and there executed it. The petitioner raised the objection that the Court of Small Causes had

no jurisdiction to execute this decree because the value of the suit was for a sum of more than Rs. 2,000. This objection was overruled by the

learned Judge of the Court of Small Causes on the ground that the transferee Court acts as the agent of the transferor Court, and he quoted

Narasayya v. Venkatakrishnayya ILR (1884) Mad. 397, Shunmuga Pillai Vs. Ramanathan Chetti, and Malabar Forests and Rubber Co., Ltd. v.

Manavikraman Thimmalpad (1933) 66 M.L.J. 418 in support of his conclusion.

The cases quoted in the preceding paragraph were based on an interpretation of the general sections of the CPC relating to transfer for

execution; and the learned Judges were considering a transfer to an ordinary Civil Court and had no occasion to consider the special position of

Courts of Small Causes. Although the CPC governs procedure in Courts of Small Causes also, there are a few provisions of the Code that relate

only to such Courts. Those special provisions must necessarily prevail when we are considering the procedure relating, to such Courts. One of the

special provisions is Order 21, Rule 4. That rule enables (he Court of Small Causes to execute decrees of other Courts only when two conditions

are fulfilled. One is that the decree has been passed in a suit in which the value as set forth in the plaint does not exceed Rs. 2,000, and the other is

that the suit as regards its subject-matter is not excepted by the law for the time being in force from the cognizance of either a Presidency or a

Provincial Court of Small Causes. It follows therefore that the Presidency Court of Small Causes, Madras, had no jurisdiction to execute this

decree and therefore acted without jurisdiction in doing so.

Another argument that the respondent might have put forward in support of the lower Court''s order was that Order 19, Rule 30 of the Original

Side Rules lays down the method of execution in such cases and says that,

Where the property sought to be attached is -in the custody of another Court, the execution implication shall ask that, after attachment, the decree

may be transmitted to that Court for execution; and if the attachment is made...the Registrar shall transmit the decree accordingly.

That at first sight would seem to be inconsistent with Order 21, Rule 4 of the Code of Civil Procedure. The rules in Schedule I of the CPC apply in

general to High Courts unless the rules specially framed for the High Court or any other provisions of the CPC make those rules of the CPC

inapplicable to High Courts; for Order 1, Rule 3 of the Original Side * Rules repeals only such provisions of the CPC as might be inconsistent with

the Original Side Rules. So the question is whether Order 21, Rule 4 of the CPC can be said to be inconsistent with Order 19, Rule 30 of the

Original Side Rules. Order 19, Rule 30 purports to apply to all execution applications; but it seems incredible that the Original Side Rules were

intended to abrogate the provisions of Order 21, Rule 4, Civil Procedure Code, because Order 21, Rule 4 seems to embody the important

principle that Small Cause Courts should execute decrees only of such suits that the Small Cause. Court could have itself entertained. I find it

difficult to believe that Order 19, Rule 30 of the '' Original Side Rules was intended to overrule such an important provision as Order 21, Rule 4 of

the Code of Civil Procedure. I feel sure that such a marked deviation from the CPC would have been positively expressed and not left to be

deduced by inference.

The petition is allowed and the orders of the lower Court and of the first Assistant Registrar set aside. The petitioner will be given his costs in

this Court. In the lower Court each party will bear his own costs.