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1951 DIGILAW 148 (KER)

Pathummal v. Krishnaru

1951-12-07

GANGADHARA MENON, SANKARAN

body1951
Judgment :- 1. In this Second Appeal preferred by the defendant in the case he has questioned the correctness of the view taken by the lower court that his objection to the executability of the decree is unsustainable. The suit was for recovery of arrears of jenmikarom due in respect of the plaint property for the period from 1110 to 1115. The amount claimed by way of such arrears came to a little less than RS.100/-. The District Munsiff of Attingal entertained the suit as an original suit and passed a decree in favour of the plaintiff. According to the defendant, that court had no jurisdiction to entertain the suit and hence the decree in the case is a nullity and cannot be enforced against him. This contention is based on the provisions contained in S.33 of the Travancore Jenmi and Kudiyan Act, which prescribe a summary procedure for the recovery of arrears of jenmikarom falling within certain specified limits. These provisions are as follows: "Claims by jenmies for recovery of arrears of jenmikarom shall when the amount or value of such claims does not exceed Rs. 100 be taken cognizance of and disposed of summarily by the Courts hereinafter mentioned: (1) District Munsiff's shall have jurisdiction in respect of such claims where the amount or value of the claim does not exceed Rs. 30; (2) The Zilla Judges shall have similar jurisdiction when the amount or value of the claim exceeds Rs. 30, but does not exceed Rs. 100". In the present case the claim exceeds Rs. 30, but was below Rs. 100/-. Hence the claim could be entertained and disposed of summarily only by the District Court having jurisdiction over the subject-matter of the suit. Since the claim exceeded Rs. 30/-, the Munsiff's Court could not deal with it in a summary manner. What that Court did was that it entertained the claim as an original suit and passed a decree in the exercise of its original jurisdiction. The decree could be deemed to be a nullity only if it is found that there was a total absence of jurisdiction for the Munsiff's Court to entertain the claim even as an original suit. The District Munsiff had jurisdiction to entertain all original suits subject to the limitations imposed by S.12 of the Travancore Civil Courts' Act (Act II of 1084). The District Munsiff had jurisdiction to entertain all original suits subject to the limitations imposed by S.12 of the Travancore Civil Courts' Act (Act II of 1084). That section lays down that "the jurisdiction of a Munsiff extends, subject to the rules contained in the Code of Civil Procedure, to all original suits and proceedings of which the amount or value of the subject matter does not exceed Rs. 2000 " ...................... . 2. The claim in the present case was within the limit prescribed by the section and hence the Munsiff's Court could normally have entertained the claim as an original suit but for the provision contained in S.33 of the Jenmi and Kudiyan Act. It is clear from a reading of that section that it only prescribes a summary procedure for recovery of claim on account of the jenmikaroms not exceeding Rs. 100. The section does not expressly prohibit the entertaining of such claims as original suits. In fact there is nothing the S.33 of the Jenmi and Kudiyan Act to indicate even by way of implication that by virtue of that section there has been an ouster of the ordinary jurisdiction of the Courts. The exercise of such jurisdiction in respect of a claim for which a summary procedure was prescribed by 5.33 of the Jenmi and Kudiyan Act could only be an irregularity. In an appeal or revision against the decree passed in violation of the summary procedure prescribed by S.33, the irregularity could be set right by directing a retrial strictly in accordance with the procedure prescribed by the section. But where there has been no such appeal or revision and the decree has become final the executing court cannot ignore that decree as a nullity since it cannot be said that there was a total absence of jurisdiction for the Court to pass the decree in question. 3. A similar question arose for consideration in Raman Kumaran v. Padmanabhan Mallan (6 Travancore Law Journal 101). That was a case where the subject-matter of the suit had to be dealt with by the Munsiff 's Court as a small cause suit in the manner prescribed by S.13 of the Civil Courts Act (Act II of 1084). But as a matter of fact the Munsiff had entertained the claim as an original suit and had passed a decree. But as a matter of fact the Munsiff had entertained the claim as an original suit and had passed a decree. In considering the question of the enforceability of that decree, it was ruled "that S.13 of the Civil Courts' Act merely regulated the procedure to be adopted in the adjudication of certain classes of suits, and did not take away the jurisdiction of the Munsiff's to try them as original causes, and that therefore the decision of the suit by the Munsiff as an original cause was valid and operative." The effect of a decision passed in similar circumstances has been considered by other High Courts also. In considering the result of the failure to comply with the mandatory provision contained in S.16 of the Provincial Small Cause Courts Act (1887) it was ruled by the Bombay High Court in Jodha v. Maganlal (AIR 1930 Bom. 80) that the failure to comply with S.16 is merely a defect in procedure in proceeding in a court other than the Small Cause Court having jurisdiction to try the case, but that does not mean that the court had no jurisdiction to try the suit. Unlike the directive provision contained in S.33 of the Travancore Jenmi and Kudiyan Act, the provision contained in S.16 of the Provincial Small Cause Courts Act is prohibitive in its character and it is as follows: "Save as expressly provided by this Act or by any other enactment for the time being in force a suit cognizable by a Court of Small Causes shall not be tried in other Courts having jurisdiction within the local limit of the jurisdiction of the Court of Small Causes by which the suit is triable". In spite of such a provision that it was ruled in the above mentioned case that the failure to comply with the provision is merely a defect in procedure. In U.K. Seal v. A.R.A. Arumugam Chettiar (A.I.R. 1935 Rangoon 35) it was ruled that "the effect of the provisions of S.16 is not to deprive the Regular Court altogether of jurisdiction in suits cognizable by a Court of Small Causes, but merely to prevent the exercise of that jurisdiction by the Regular Court so long as there is a Court of Small Causes having jurisdiction within the same local limits. But if a Court by error tries a suit which is of a small cause nature and is cognizable by a Small Cause Court exercising jurisdiction within the same local limits, then the proceedings of the Court are not entirely without jurisdiction, and therefore are not a nullity". To the same effect is the ruling in Afzal Hussain v. Mahomood Hussain (AIR 1949 Oud. 449). Applying these principles to the facts of the present case, it is clear that the decree in this case cannot be deemed to have been passed by a Court having no jurisdiction at all to entertain the claim and that therefore the decree cannot be ignored as a nullity. 4.The lower courts are therefore right in holding that the decree is an effective decree and it could be enforced by way of execution. 5. In the result this Second Appeal fails and it is accordingly dismissed with costs. Dismissed.