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1963 DIGILAW 33 (KER)

NARAYANAN v. CINEMA EQUIPMENT CO

1963-01-18

S.VELU PILLAI

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Judgment :- 1. The Madras Small Cause Court transferred three suits to the court of the Munsiff at Pathanamthitta, for execution, under the provisions of S.31 the Presidency Small Cause Courts Act, 1882. A question of limitation for execution of the decree was raised before the latter and was answered against the judgment debtors in the three suits. The appeals preferred against the orders of the execution court before the court of the Subordinate Judge of Kottarakara, were held to be not maintainable as they were made in execution of small cause decrees, and were therefore ordered to be returned for presentation to the proper court. These three petitions are to revise the orders of the Subordinate Judge. 2. The relevant part of S.31 of the Presidency Small Cause Courts Act reads: "If the judgment-debtor under any decree of the Small Cause Court has not, within the local limits of its jurisdiction, movable property sufficient to satisfy the decree, the court may, on the application of the decree-holder, send the decree for execution xxx "(b) in all other cases to any Civil Court within the local limits of whose jurisdiction such judgment-debtor, or any movable or immovable property of such judgment-debtor, may be found. The procedure prescribed by the Code of Civil Procedure for the execution of decrees by Courts other than those which made them shall be the procedure followed in such cases." There is no doubt, that the court of the Munsiff at Pathanamthitta has to follow the procedure prescribed by the Civil Procedure Code. The question of limitation for execution, has, by virtue of S.47 of the Civil Procedure Code, to be decided by the court executing the decree. In so far as S.47 ordains, that all questions arising between the parties to the suit and relating to execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit, it may be held to relate to procedure in execution. The orders of the court holding that the execution of the decrees is not barred by limitation were made, while following the procedure for the execution of decrees. The orders of the court holding that the execution of the decrees is not barred by limitation were made, while following the procedure for the execution of decrees. The orders were formal expressions of an adjudication which conclusively determined the rights of the parties with regard to the matters in controversy and amounted to 'decrees' as defined in S.2 (2) of the Civil Procedure Code, which were appealable under S.96, CPC. The right of appeal is founded not upon the last clause of S.31 of the Presidency Small Cause Courts Act extracted above, which relates only to procedure, but upon S.93 which provides that every decree shall be appealable. 3. In Ponnappa Reddi v. P. Thiruvengada Pillai &Co., AIR. 1925 Mad.1179, a division bench of the Madras High Court said, that the moment the Civil Procedure Code is applicable to the proceedings in a court, unless some portions of it are exempted by a special rule or enactment from being applicable to the proceedings of such court, the whole Code is applicable and a party has the right of appeal which that Code gives. There is, therefore, no substance in the contention that the appeal by the decree-holders was incompetent. My attention was invited by the learned counsel for the respondent-decree-holder to the opinion delivered by a full bench of the Madras High Court in Bava C. Gopalaswami Mudaliar v. The Abhisheka Kattalai, AIR. 1950 Madras 504. The question which was referred to the full bench was whether the court to which a decree of the Small Cause Court was transferred, had jurisdiction to decide whether execution was barred by limitation under S.48 of the Civil Procedure Code or not. The full bench held, that S.48 lays down only a rule of limitation for execution and does not relate to procedure. Art.182 of the Indian Limitation Act has provided for the execution of a decree or order, not provided f or by Art.183 or by S.48 of the Civil Procedure Code, 1908. The operation of S.48 to Small Cause decrees is. excluded by S.8 of the Civil Procedure Code. Though S.47 C.P.C. also is excluded, it is taken in by the clause which has saved S.31 of the Presidency Small Cause Courts Act for such proceedings. The operation of S.48 to Small Cause decrees is. excluded by S.8 of the Civil Procedure Code. Though S.47 C.P.C. also is excluded, it is taken in by the clause which has saved S.31 of the Presidency Small Cause Courts Act for such proceedings. The decision of the full bench referred to above does not apply where the question has to be determined by the execution court as a part of the procedure relating to execution of decrees. In the case of Small Cause decrees the right of appeal in similar circumstances is excluded by S.7 of the Civil Procedure Code, which declares that S.96 of the Civil Procedure Code does not apply to such cases. S.115 C.P.C. also is excluded, but a right of revision is provided for by S.22 of the Kerala Small Cause Courts Act, 1957. 4. For the above reasons the orders sought to be revised are set aside and the cases sent back to the court of the Subordinate Judge with a direction to admit the appeals and to hear and dispose of them according to law. In the nature of the questions raised I do not order costs.