Guruswami Chettiar vs Subramaniam

Nainar Sundaram, J.—The Plaintiff in a suit Ref. V.M. No. 166 of 1970 initiated on the file of the Village Munsif, Koilur, is the Petitioner in

this revision. The Respondent herein is the Defendant in the said suit. An ex-parte decree was passed in the suit which, as stated above, was

instituted before the Village Munsif, Koilur, who is the Village Court within the meaning of the Madras Village Courts Act, 1889 (hereinafter

referred to as the Act). The Plaintiff got the decree in that suit transferred to the District Munsif of Tirukoilur for levying execution by way of

arresting the Defendant/judgment-debtor. The Defendant resisted the said execution petition, Execution Petition No. 214 of 1974 on the ground

that the Koilur Village Munsif has no jurisdiction to entertain the suit and hence the decree of the Koilur Village Munsif is without jurisdiction and

execution of the decree is incompetent. According to the Defendant, none of the conditions which would confer jurisdiction on the Koilur Village

Munsif, obviously referring to Section 15 of the Act, is present in that, he, the Defendant, did not,, at the time of the commencement of the suit,

resided, or carried on business, or personally worked for gain within the local limits of the jurisdiction of the Koilur Village Munsif.

The District Munsif, Tirukoilur, who considered the execution petition in the light of the objection of the Defendant found in substance that the

ingredients of Section 15 of the Act are not satisfied and consequently held that the decree is void and is incapable of execution. As a result, the

execution petition was dismissed. This revision is directed against the said orders of the District Munsif, Tirukoilur.

Mr. S. Narayana Ayyangar, learned Counsel for the Petitioner, submits that the District Munsif, executing the decree of the Village Court,

cannot sit in judgment over the decree and hold that the decree is without jurisdiction and hence incapable of execution. The learned Counsel refers

to the various provisions of the Act and in particular, Section 73 of the Act, and submits that the decree ""of the Village Court not having been

canvassed on the ground of want of jurisdiction u/s 73 of the Act has became final and in any event, the District Munsif, as the Court executing the

decree, cannot consider this question in execution.

Mr. V. Krishnan, learned Counsel for the Respondent, contends that the decree being one passed by village Court, which has no jurisdiction

within the meaning of Section 5 of the Act, the contention as to the lack of jurisdiction and on that ground the said decree being void and incapable

of execution can be raised even at the state of execution. According to the learned Counsel, there was an inherent lack of jurisdiction to entertain

the suit by virtue of the provisions of Section 15 of the Act and the principles under the CPC cannot be invoked to cure the defect as to the place

of suing. The learned Counsel relied on the dictum of Abdur Rahman J., in Krishniah Chetty v. Narayanappa (1937) 47 L.W. 259. In that

decision, the learned Judge observed as follows:

The position might have been different if the provisions of the CPC had applied. But, a special tribunal, different from the ordinary Courts of the

land has been brought into being by this Act, and one must look to the specific grounds given in the Act itself which would confer jurisdiction on

that tribunal. The general provisions contained in the CPC cannot be extended to the Village Courts and cannot be permitted to be added to the

provisions contained in Section 15 of the Act.

The question that comes up for consideration in this revision is whether the District Munsif, executing the decree of the Village Court, can

consider the question as to the lack of jurisdiction of the Village Court that passed the decree and decline to proceed with the execution on the

ground that the decree is without jurisdiction. It would be pertinent to refer to the relevant provisions of the Act to find out as to whether the statute

gives a finality to the orders and decrees of the Village Court, and as to whether adequate remedy is provided by the statute to rectify all or any

defect in the exercise of powers conferred by it.

It is an established principle that when by an Act of Legislature powers are given to any authority for a specific purpose, from the exercise of

which an individual may receive an injury, or feel aggrieved, if the mode of redressing the injury is pointed out and provided by the statute, the

jurisdiction of the ordinary Court is ousted.

Chapter VI of the Act provides for a complete set of rules with reference to the execution of the decree of Village Courts. Section 66 of the Act

reads as follows:

(1) Any decree passed by a Village Court may, on the application of the decree-holder, be transmitted for execution to the District Munsif,

who may:

(a) execute the decree as if it were a decree passed by himself, or:

(b) transmit it for execution to the Court of any other village within his jurisdiction in which the Defendant is represented to have movable property ;

or

(c) transmit it to the Court of any other District Munsif within whose jurisdiction the Defendant is represented to reside or to have property.

(2) The District Munsif to whom a decree has been transmitted under Clause (c) of Sub-section (1) may execute the decree as if it were a decree

passed by himself or transmit for execution to the Court of any village within his jurisdiction in which the Defendant is represented to have movable

property.

(3) The village Court to which the decree is transmitted under Clause (b) of Sub-section (1) or Sub-section (2) shall proceed as if the decree was

passed by itself,

Section 67 reads as follows:

It shall be competent to the District Munsif to withdraw the execution of any decree from any village court, and to execute it himself, as if it

were a decree passed by himself.

Section 67-A may also be taken note of and it says:

67-A. Notwithstanding anything contained in the Code of Civil Procedure, 1908, no appeal shall be from any order made by a District Munsif

relating to the attachment or sale of movable property in execution of any decree passed by a village Court.

The important provision to be considered in Section 73 of the Act, which reads as follows:

The District Munsif, may, on a petition being presented within sixty days from the date of any decree or order of a Village Court by any party

deeming himself aggrieved by such decree or order, set aside such decree or order on the ground.

of corruption, gross partiality or misconduct of the Village Court; or

of its having exercised a jurisdiction not vested in it by law, or otherwise acted illegally or with material irregularity; or

that the decree or order is clearly unjust and may pass such other decree or order as he thinks fit : provided that no decree or order of a village

Court shall be set aside without notice to the opposite party. Pending disposal of any such petition, the District Munsif may stay execution of the

decree or order.

A petition under this section may be entertained after sixty days by the District Munsif if he is satisfied with the cause shown for the delay,

Except as provided in this section, every decree and order of a village Court shall be final. District Munsif is defined u/s 13 of the Act as follows:

District Munsif, menus the District Munsif within the local limits of whose jurisdiction the Village Court is situated; Provided that if the village is not

situated within the local limits of the jurisdiction of any District Munsif, the Subordinate Judge, or if there be no Subordinate Judge, the District

Judge within the local limits of whose jurisdiction the village is situated, shall be deemed to be the District Munsif;

Provided further that if in any area the District Munsif does 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.

From a reading of the above provisions, it is evident that the District Munsif is conferred with powers of revision u/s 73 of the Act when an

objection being taken on the ground of want of jurisdiction on the part of the Village Court and the District Munsif is also given the power u/s 66 of

the Act to execute the decree of the Village Court as if it were the decree passed by himself and other incidental powers in execution arc also

conferred on the District Munsif.

The principles with regard to the exclusion of the jurisdiction of the Civil Court may not be germane to consider the question in issue. It is true

that an exclusion of jurisdiction of the Civil Court is not readily to be inferred. If the Statute creates a special right of a liability and provides for the

determination of the right of liability and further lays down that all questions about the said right and liability shall be determined by the tribunalso

constituted, it may not be permissible to by pass the specific provisions of the statute and allow the individual fleeted to agitate his contentions

elsewhere in a different form.

Mr. V. Krishnan, learned Counsel for the Respondent relies on the judgment of Yahya Ali J., in Earamalla Sanjamma Vs. Anna Sayanna, and

submits that the word final in Section 73 of the Act means final so far as the particular Court is concerned in which the decree was obtained and

could not be held to extend to the exclusion of the jurisdiction of the ordinary civil Courts. The question that came up for consideration before

Yahya Ali, J. in the above decision arose under a set of facts and circumstances entirely different from these of the present case. The suit that was

considered by the learned Judge in the above decision was instituted in a Civil Court to set aside the decree of a village Court on the ground that

the said Court had no jurisdiction in respect of the subject-matter, as the Defendant was not a resident of the Village. No application u/s 73 of the

Act was made to set aside the said decree. In the said context, the learned Judge held that the suit under the common law to set aside the decree

on the grounds urged was competent and observed as follows:

Here the word final appearing in Section 73 must be held to mean final so far as the particular Court is concerned in which the decree was passed

and cannot be held to extend to the exclusion of the jurisdiction of the ordinary Civil Courts.

This observation cannot be taken to mean to exclude that District Munsif empowered under the Act to execute the decrees of Village Courts. The

learned Judge was not confronted with a situation where the District Munsif who is the executing Court u/s 66 of the Act and who is also the

Revisional Authority u/s 73 of the Act, is called upon to declare the decree as void in the course of exercise of powers as an executing Court. It

must be remembered that the District Munsif gets the powers of execution by virtue of Section 66 of the Act; and as an executing Court he is part

and parcel of the Heirarchy under the Act. The power to set aside a decree or order on the ground of want of jurisdiction by the village Court is

specifically conferred on the District Munsif by Section 73 of the Act. Subject to such corrections in revision, every decree and order of village

Court is declared final by the provisions of Section 73 of the Act. If this is kept in mind, it will be very difficult to hold that the District Munsif,

exercising powers u/s 66 of the Act, can decline to execute the decree on the ground that it is one passed without jurisdiction. That would be

within his purview u/s 73 of the Act. Hence I hold that the District Munsif, exercising powers u/s 66 of the Act, can not sit in judgment over the

decree of the Village Court and declare it was without jurisdiction, when the machinery specifically provided u/s 73 of the Act has not been

resorted to, to set aside the decree on this ground. Accordingly this revision is allowed, but there will be no orders as to costs.

The Court below will take up the execution petition and consider the same on merits in accordance with law, However, it may still be open to

the Respondent to resort to the remedies u/s 73 of the Act by showing sufficient cause for the delay.