Ramchandra Nathuram and others vs Shrikishandas and others

R.K. Tankha, J.—This revision u/s 115 of the CPC is by the applicants against an order darted 11 12-1975 passed by the District Judge, Mandla, in Misc. Civil Appeal No. 4 of 1975.

Facts leading to the present revision are that non-applicants 1 to 8 obtained a decree for Rs. 4,591 with costs amounting to Rs. 831.65 against non-applicants 9 to 17 from the Court of Civil Judge, Class II, Jabalpur. The said decree was transferred for execution to the Court of Civil Judge, Class II, Dindori. In the execution proceedings, suit property was attached. The applicants preferred an objection under Order 21, Rule 58 of the Code of Civil Procedure. On 4-4-1968, the executing Court allowed the objection and released the property from attachment. Thereafter, non-applicants 1 to 8 filed the present suit under Order 21, Rule 63 of the Code in the Court of Civil Judge, Class I, Mandla, and valued the same at Rs. 8,000. The applicants raised a preliminary objection regarding the jurisdiction of the Court contending inter alia that the valuation of the suit should be the valuation of the decree and which being below Rs. 5,000, the suit would be triable by Civil Judge, Class II, Dindori, who was the executing Court. The objection was allowed and the Civil Judge, Class I, Mandla, returned the plaint for presentation to the Court of Civil Judge, Class II, Dindori, vide the order dated 7-1-1974. Against that order, non-applicants 1 to 8 preferred an appeal before the District Judge, Mandla, under Order 41, rule 1 (a) of the Code. The lower appellate Court has set aside the order of the trial Court and hence the applicants have come up in the present revision.

Having heard learned counsel of the parties, I am of opinion that this revision has no merit and it must be dismissed. The point that arises for determination in this revision is about the jurisdictional value of a suit under Order 21, Rule 63 of the Code which has been filed by the non-applicants 1 to 8 in the Court of Civil Judge, Class I, Mandla after being defeated as claimants in relation to the suit property which was attached earlier by the executing Court in relation to the decree obtained by the said non-applicants from the Court of Civil Judge, Class II, Jabalpur and which later stood transferred for execution to the Court of Civil Judge, Class II, Dindori. In the present case, the attached property was released on an objection raised by the applicants under Order 21, Rule 58 of the Code by the executing Court which led to the filing of the present suit under Order 21, Rule 63 of the Code by the non-applicants 1 to 8, who valued the suit for purposes of jurisdiction of the Court of Civil Judge, Class I on the basis that the decretal amount for which the claim was laid in the application for execution was for Rs. 4,591 as principal plus costs amounting to Rs. 831.65, the total of which exceeded Rs. 5,000 thereby ousting, the jurisdiction of Civil Judge, Class II who was empowered to try suits upto the valuation of Rs. 5,000. These facts are not in dispute.

I now proceed to answer the point raised by the learned counsel for the applicants. It is well settled now that in a suit under Order 21, Rule 63 of the Code where the property involved is of larger value than the amount due under the decree that the decree amount should determine the value of the suit. But where the value of the property is smaller it is that, that should be the touch-stone for determination of the jurisdiction. To say in other words, where the decretal amount is larger and the market value of the property involved is smaller, then the market value of the property determines the value of the suit. In other cases, it is the decretal amount. In this connection I may simply make a reference to some of the decisions, namely, Phul Kumari v. Ghanshyam Misra I L R 35 Cal. 202 (P C), Radhabai v. Madhorao and others 1944 N L J 306, Inderam Mansaram and Another Vs. Ramdin Bhagwant Prasad and Others, L. P. A. No. 24 of 1960, decided on 24-8-1961. S. Renganatha Iyengar v. T. A. Subramanian Chettiar A I R 1956 Mad. 402 and Nandlal Singh and Another Vs. Mt. Baratan and Others,

But now I shall refer to a case in which, like in the present case, the decree-holder was plaintiff whose claim to attach the property was defeated under Order 21, Rule 58 of the CPC and he filed a suit under Order 21, Rule 63 of the Code. In Madhusudhan Koer and another v. Rakhal Chunder Roy and another I L R 15 Cal. 104 the plaintiff there was the successful decree holder who wanted to attach certain properties as belonging to his judgment-debtor and whose attempt was failed by the claimant. It was held that the amount which is to settle the jurisdiction of the Court is the amount which is in dispute, and the amount which is in dispute is the amount which the execution-creditor will recover if he is successful, would be the amount of his debt and not the value of the property attached unless the two amounts happen to be identical.This view was approved by this Court in Radhabai v. Madhorao and others (supra) by Pollock J., as he then was, saying as under:

In Madhusudan Koer v. Rakhal Chunder Roy, in which the decree-holders were the plaintiffs, it was held that the value of the suit for purposes of jurisdiction was the value of the decree which was considerably less than the value of the property attached; and where the decree-holder is the plaintiff that view is, I think, clearly correct.

In S. Rengnatha Iyengar v. Subramanian (supra) the relevant para 7 reads as under:

On a consideration of these authorities it seems to us that consistent with the pronouncement of LR 35 Cal. 202 at p, 207, it is only where the property involved is of larger value than the amount due under the decree that the decree amount should determine the value of the suit. But where the value of the property is smaller it is that, that should be the touch-stone for determining the jurisdiction.

But where the decretal amount is large while the market value of the property involved is smaller, then the market value of the property determines the value of the suit. In other cases, it is the decretal amount. It is, therefore, clear that a distinction is necessary between cases where the plaintiff is the defeated claimant and cases where the plaintiff is the decree-holder who is foiled in his attempt to attach the property.

In the latter case there could certainly be no doubt that the decree amount should alone decide the jurisdiction of the Court. In the former case where the defeated claimant seeks to extricate his property from the clutches of the attachment then if the property is of higher value than the decree amount, the decretal amount determines the jurisdiction. But where the property is of lower value, then the market value of the property should be the guiding factor.

But the distinction which has been drawn in the above Madras case between one suit and another brought under Order 21, Rule 63 of the Code was not approved as the correct view by this Court in Radhabai v. Madhorao and another (supra) wherein also an attempt was made in that direction and it was observed as follows:

....I think it is very difficult in view of the Privy Council decision in Phul Kumari v.Ghanshyam Misra, to draw any such distinction between one suit and another brought under Order XXI, rule 63.........

This view was relied upon in a later case of this Court in Smt. Tejabai Vs. Gram Panchayat and Others, in which Shrivastava, J. (as he then was) expressed himself in respectful agreement with that. I, therefore, see no reason to differ from the consistent view of this Court. Moreover, neither of the counsel appearing for the parties addressed me on this aspect. Even I am of opinion that no distinction can be made between suits brought under Order 21, rule 63 of the Code whether by a disappointed decree-holder as plaintiff whose attempt to attach the property stands foiled or where the plaintiff is the defeated claimant. As such, I am in respectful agreement with the view expressed in the earlier two decisions of this Court and with due respect differ from the view taken by the Madras High Court in S. Renganatha Iyengar v. Subramanian (supra).

As in the instant case it was found by the lower appellate Court that the market value of the house (attached) was more than Rs. 8,000 and which fact was also not challenged before me, I am of opinion that the decree amount which is much less should alone decide the jurisdiction of the Court. It also appeals to common sense that all that the plaintiff could claim is only what is granted to him by the decree and nothing more, however much valuable might be the property. Learned counsel for the parties also ultimately admitted before me that in the present case, where the value of the property exceeds the decretal amount the value for purposes of jurisdiction is the decretal amount.

Then, another point that was raised by the learned counsel for the applicants was "what is the decretal amount for the determination of jurisdiction". According to him, it is only the principal amount alone which will determine the jurisdiction of the Court and not the amount including the costs etc. My answer to the submission is in the negative. The value for purposes of jurisdiction would be the principal amount including the costs or to say in other words the total claim as put in the application for execution in relation to which the property was attached and that would be the decretal amount. The decree-holder-plaintiff was seeking execution of that full amount and in relation to that he got the property attached and not only for the principal amount. Therefore, when the property is released from attachment and the decree-holder-plaintiff files a suit under Order 21, Rule 63 of the Code, as laid down earlier, his claim would be in relation to the full amount as given in his execution application. But the said application is not on record here as mentioned by the lower appellate Court in its order as well. Any way, in the present case there was no dispute that the principal amount was Rs. 4,591 plus Rs. 831.65 as costs. Thus, the total amount for purposes of jurisdiction would be Rs. 5,422.65. I am supported in my view by a decision of a Division Bench of Madras High Court in S. Renganatha Iyengar v. Subramanian (supra), wherein relevant passage reads as under:

In our view the amount for which the property was attached should determine the jurisdiction of the Court in which the suit ought to be filed by the defeated claimant.

In an earlier case, the Full Bench of the same High Court in Krishna Swami Naidu v. Somasundram Chettiar 30 Mad. 335 (FB), it was held that the amount for which the attachment took place and not the value of the suit should determine the jurisdiction of the Court in which the suit has to be filed, because such a suit was not a suit to obtain declaration of title to the property but one for getting rid of the effect of the order disallowing the claim and so it ought to be valued at the amount for which the property was attached. I, therefore, hold that the amount of decree for purposes of determination of jurisdiction of the Court would include the amount shown in the execution petition for which the property was attached.

For the reasons stated above, it is, therefore, clear that the trial Court by returning the plaint to the non-applicants 1 to 8 for presentation to proper Court committed an error in the exercise of its jurisdiction. The learned District Judge was right in holding that since the total amount exceeds Rs. 5,000, Civil Judge, Class II will have no jurisdiction to try the suit and, therefore, the suit was rightly filed in the Court of Civil Judge, Class I, Mandla, who alone has jurisdiction to try suits over the valuation of Rs. 5,000. Thus, the lower appellate Court committed no illegality or material irregularity in the exercise of its jurisdiction.

Before parting with the case, I would like to observe that a serious infirmity has been committed in the order of the learned District Judge who while setting aside the order of the trial Court has directed a decree to be framed in accordance with his order. I am indeed surprised to read such a direction in the order of the learned District Judge which is unexpected of a judicial officer of such an experience. I am equally surprised to read the first para of his judgment which reads as under:

This appeal is directed against the judgment and decree dated 7-1-1974 of Civil Judge, Class I, Mandla, passed in Regular Civil Suit No. 8-A of 1969 whereby plaintiff''s suit for declaration under Order 21, Rule 63 of CPC has been returned for presentation in the proper Court.

While the trial Court only passed an order returning the plaint. But it seems that no decree was drawn up as stated in the petition and that fact was not controverted by learned counsel for the non-applicants. I do hope that the learned District Judge would be more careful in future.

I further find that while allowing the appeal the learned District Judge did not incorporate proper direction, which is necessary in such type of cases, for presentation of the plaint. I, therefore, hereby direct that the plaint shall be re-presented in the Court of Civil Judge, Class I, Mandla, which has jurisdiction to try the suit, within one month from the date of this order.

For the reasons stated above, this revision petition fails and is hereby dismissed subject to the afore-mentioned direction for presentation of the plaint. There shall be no order as to costs of this petition.