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Allahabad High Court · body

1940 DIGILAW 184 (ALL)

Sitaram v. Badri Dass

1940-09-30

GHULAM HASAN

body1940
JUDGMENT Ghulam Hasan, J. - This is an appeal filed by one of the judgment-debtors purporting to be u/s 47 of the Code of Civil Procedure. 2. The facts are as follows. Respondent No. 1, decree-holder, obtained a decree for Rs. 85 with costs and future interest against the appellant and respondent No. 2 to the extent of the assets received by them from one Baij Nath deceased who originally owed the debt to the respondent No. 1. The suit was filed against the appellant judgment-debtor and respondent No. 2 as legal representatives of the deceased Baij Nath. The suit was decreed by the learned Munsif of Fyzabad sitting on the Small Cause Court side. In execution of the decree the decree-holder attached a plot of land and a certain house situate on Nos. 288, 289, 290, 291 and 292. The attachment was ordered by the same learned Munsif sitting on the regular side. The judgment-debtors filed objections to the attachment alleging that the property attached did not belong to the deceased Baij Nath but to them exclusively. The learned Munsif allowed the objection in respect of the house but disallowed it in respect of the plot. In appeal by the decree-holder the decision of the learned Munsif was set aside in respect of his order relating to the house and it was held by the lower appellate Court that the house did not belong to the judgment-debtor exclusively but that it belonged to the deceased Baij Nath as well. 3. The judgment-debtor now files this second appeal against the dismissal of his objection by the lower appellate Court. 4. A preliminary objection is taken on behalf of the decree-holder that a second appeal is not maintainable under the provisions of Section 102 of the Code of Civil Procedure. I have heard the learned Counsel on both sides at some length and I am of opinion that the contention must prevail. 5. Section 102 of the CPC lays down that- no second appeal shall lie in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject matter of the original suit does not exceed five hundred rupees. 6. 5. Section 102 of the CPC lays down that- no second appeal shall lie in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject matter of the original suit does not exceed five hundred rupees. 6. The learned Counsel for the appellant contends that Section 102 C.P.C. applies only to suits and not to execution proceedings and that the objection having been made u/s 47 of the CPC a second appeal could lie to this Court. The learned Counsel is unable to refer to any authority of any Court in support of the contention which he has advanced. In my opinion the matter is concluded by a long catena of decisions of the various High Courts in India including our own Court that in the case of a suit of the nature of Small Causes no second appeal lay u/s 586 of the CPC whether the appeal was against the decision in the suit or whether the matter arose in the course of the execution proceedings. The earliest case is reported in Mst. Umut-ul-Athar Begum v. Baldeo Das (1905) 8 O.C. 405. It was an execution case decided by a Bench of the old Court of the Judicial Commissioner. In the case reported in Gudar Singh v. Kandhai Lal AIR 1918 Oudh 29 (1) it was held by Mr. Lindsay J. C. that: no second appeal lies from an order passed in execution of a decree obtained in any suit of the nature cognizable by a Court of Small Causes where the amount or value of the subject matter of the original suit does not exceed Rs. 500. 7. In Lala Nand Lal v. Syed Ali Akbar AIR 1987 Oudh 244 it was held that Where a suit cognizable by a Court of Small Causes is tried by a Munsif as a" regular suit no second appeal lies from it under Section. 102 of the Code of Civil Procedure. 8. Similarly in Ram Charan v. Kedar Nath (1896) 18 All. 481 a similar view was taken. Coming to the Allahabad decisions a full Bench of the Allahabad High Court following an earlier decision of the same Court reported in Harakh v. Ram Sarup (1890) 12 All. 102 of the Code of Civil Procedure. 8. Similarly in Ram Charan v. Kedar Nath (1896) 18 All. 481 a similar view was taken. Coming to the Allahabad decisions a full Bench of the Allahabad High Court following an earlier decision of the same Court reported in Harakh v. Ram Sarup (1890) 12 All. 579 decided in a case under the old Section 586 of the Code of 1882 corresponding to the present Section 102, C.P.C. (1908) reported in Din Dayal v. Palra Khan (1896) 18 All. 481 that no second appeal will lie in respect of an order made in execution proceedings in a suit of the nature cognizable in a Court of Small Causes where the subject matter of the suit does not exceed Rs. 500 in value." 9. Similar view was taken in the following decisions of the Allahabad High Court reported in Ratan Lal and Another Vs. Muhammad Hamidullah Khan, AIR 1921 All 65 , Ram Raj Dassundhi Vs. Mt. Umraji and Another, AIR 1926 All 345 and Mt. Mendha Kunwar Vs. Ganga Saran Sahu and Others, AIR 1927 All 740 . Lastly it has been held by a Bench of the Sindh Judicial Commissioner Court in a case reported in Khan Chand Maya Ram v. Pessumal Lakhumal AIR 1939 Sind 360 that: Section 103 not only applies to appeals but to orders in execution u/s 47 of the Code. 10. I may also refer to the Full Bench Case of the Madras High Court reported in Soundaram Ayyar v. Sennia Naickan (1900) 23 Mad. 547 (F.B), which arose under the old Section 586 of the CPC where it was held that no second appeal lay from a decision in a suit of the nature cognisable in Courts of Small Causes. Having regard to the afore-mentioned decisions I am satisfied that the preliminary objection is well founded and this second appeal is not maintainable. The learned Counsel for the appellant has also asked me to treat this appeal as a revision if it is held that the present appeal is not competent. Even if I were prepared to entertain the matter u/s 115 C.P.C. on the revisional side I do not think that the case falls within the purview of that section. The learned Counsel for the appellant has also asked me to treat this appeal as a revision if it is held that the present appeal is not competent. Even if I were prepared to entertain the matter u/s 115 C.P.C. on the revisional side I do not think that the case falls within the purview of that section. There is no question of jurisdiction involved in the case nor am I convinced that there is any illegality or material irregularity committed by the lower appellate Court It is urged that the decision of the lower appellate Court dismissing the objection proceeds upon a Certain admission contained in Ex. Al a plaint filed by the judgment-debtor and respondent No. 2 in the year 1935, regarding this very house. In Para 4 of that plaint the plaintiffs admitted that the deceased Baij Nath had a share in the house in dispute. It is urged before me that [the, admission relates not to the house attached in this case but to some other house and reliance is based on the boundaries contained in Ex. Al and the certificate of search filed by the decree-holder dated' 7th August. 1936 in the present execution proceedings. I have compared the boundaries given in the two documents and have also considered the oral evidence produced in the case. Ex. Al was filed in the case by the decree-holder and its genuineness, was admitted by the judgment debtor. In his evidence before the Court as P. W. I the judgment-debtor made no attempt whatsoever to explain the admission contained in Ex. Al. No question was put to him by his Counsel to show that the admission contained in Ex. Al. related to a different house as is urged now before me. I am of opinion that it was the bounden duty of the judgment-debtor himself to show that the admission contained in Ex. Al was either mistaken or untrue or it related to a different property altogether. The point raised here does not appear to have been raised, in either of the two Courts below and it seems to me that the decision on roe merits by the lower appellate Court is perfectly justified. I do not think therefore that Section 115 has any application to the facts of this case. The point raised here does not appear to have been raised, in either of the two Courts below and it seems to me that the decision on roe merits by the lower appellate Court is perfectly justified. I do not think therefore that Section 115 has any application to the facts of this case. The lower appellate Court had a jurisdiction to decide as to whether the attached house belonged to the judgment-debtor exclusively or whether the deceased Baij Nath had any share in the said house. That decision is not liable to any interference in revision u/s 115 of the Code of Civil Procedure. 11. This appeal therefore fails and is dismissed with costs.