JUDGMENT T.C. Raghavan, J. 1. There is a Division Bench ruling of the Travancore Cochin High Court, which is all on fours with the case before me; and I am inclined to apply that decision to this case. 2. The Division Bench ruling is Mohammed Mastan Kunju Mohammed Abdul Khadar v. Mytheen Kunju Pakiru Mohammed 1956 K.L.T. 343. In that case the execution petition was filed on 14th November 1953, wherein it was prayed that the property described in the schedule was to be attached and sold for recovering the decree in a small cause suit. The decree-holder filed an affidavit along with the petition stating that unless the decree was executed against immovable property, it was not possible to realise the amount. On 16th November the court allowed attachment of immovable property. The judgment debtor then filed an application on 9th January 1954 praying for payment in instalments, which was also allowed. The instalments were however not paid; and therefore, the attached property was brought to sale. On 25th August 1954 the judgment debtor applied for stopping the sale on the ground that he was not able to pay the whole decree debt and that he would pay Rs. 15 on that day. The court adjourned the sale to 3rd September 1954 directing payment of the entire decree debt by that time. On that day the judgment debtor again applied for time, when he was directed to pay Rs. 50 immediately. The deposit was not made. Therefore, the property was sold and the decree holder purchased it. The judgment debtor thereafter applied under O.21, R.89 of the Code of Civil Procedure for setting aside the sale; and pending that, he filed yet another application under R.90 for cancellation of the sale. In all these proceedings, the judgment debtor did not raise the question of jurisdiction, namely, that the Small Cause Court had no jurisdiction to attach and sell immovable property. In these circumstances, the Division Bench held that the prayer in the execution petition was, in effect, for transferring the decree from the small cause side to the civil side of the same court; and that the attachment and sale effected were only attachment and sale by that court in its exercise of civil jurisdiction and not of small cause jurisdiction. 3. 3. In the present case the position is stronger for the appellant, whose legal representatives are the persons now interested in the second appeal. The suit was filed on 30th July 1951, before the Travancore Cochin Civil Courts Act was passed, which came only in December 1951. The decree was passed on 31st October 1951, again before the said Civil Courts Act. The execution petition was filed on 24th May 1952, and along with it C.M.P. No. 6289 of 1952 was also filed, wherein a prayer was made for attaching the suit property. Thereafter, notice was issued to the judgment-debtors ; and they refused to accept notice. Ultimately, C.M.P. No. 6239 of 1952 was allowed on 19th June 1952 and attachment was ordered. Again, notice of sale under O.21, R.64 was issued on 27th August 1952, which also the judgment debtors refused to accept. Thereafter, the property came for sale on 24th October 1952 ; but the sale was adjourned to 8th November 1952. On that day also the sale did not take place as the court did not sit. The sale came on 5th November 1952, when the first judgment debtor applied for time and the counsel of the decree holder agreed, as a result of which the sale was adjourned to 22nd November. In the meantime, the attached property was sold by private sale under Ext. D-3 to the defendant-respondent on 13th November 1952. On 22nd November the property was sold and purchased by the decree-holder, who obtained a sale certificate, Ext. P-2. The rights under Ext. P-2 were then assigned by the decree-holder to the plaintiff-appellant. Thus, the appellant is a third party. 4. The appellant tried to take possession of the property in pursuance to the sale certificate; and the respondent then instituted O.S. No. 59 of 1953 for setting aside the sale. Pending suit, the appellant took delivery of possession on 25th June 1953. The respondent did not pursue O.S. No. 59 of 1953; and he filed a petition stating that the suit might be dismissed and that he would pursue his remedies before the execution court. The suit was consequently dismissed; but it does not appear from Ext. D-6, the judgment, that the court granted the respondent leave to seek his remedy elsewhere. The suit was dismissed with costs. The suit was consequently dismissed; but it does not appear from Ext. D-6, the judgment, that the court granted the respondent leave to seek his remedy elsewhere. The suit was dismissed with costs. The respondent then applied for re-delivery; and the appellant filed the present suit for redemption of the mortgage, for injunction, and for other reliefs. I may at this stage state that there were two mortgages on the property; which the respondent paid off after his purchase; and therefore, the appellant offered to pay those mortgages. He also deposited some amount in court when he filed the suit. 5. In all these proceedings, as in the Division Bench ruling already cited, no objection to the jurisdiction of the Small Cause Court to attach and sell immovable property was raised. Even in this suit it was not pleaded in the written statement of the respondent, nor was it argued before the trial court. The question was raised for the first time before the first appellate court; and that court remanded the case for consideration of this question. It is thereafter that the lower courts have held against the appellant, that the Small Cause Court had no jurisdiction to attach and sell the suit property. 6. In my opinion, the case before me is stronger for the appellant herein than the case before the Division Bench was for the respondent therein. In the Division Bench case, the suit was filed only in 1953, after the Travancore-Cochin Civil Courts Act was passed; whereas in this case, the suit was filed and even decreed before the said Act. Even the execution petition in the present case came within a few months of the Act. In the aforesaid circumstances, I have no hesitation to hold that the order of attachment made by the Munsiff on 19th June 1952 was an order made in the exercise of his civil jurisdiction and not of his small cause jurisdiction. 7. The objection of the counsel of the respondent is that there should have been a formal order transferring the case from the small cause side to the civil side; and in the absence of such a formal order, the attachment and sale were without jurisdiction. 7. The objection of the counsel of the respondent is that there should have been a formal order transferring the case from the small cause side to the civil side; and in the absence of such a formal order, the attachment and sale were without jurisdiction. In a case where the Judge or Munsiff who has to transfer the case from the small cause side is the same as the one who has to receive it on the civil side, a formal order of transfer may not always be necessary. In a case like this, where the circumstances show that there was a petition for attachment and an order thereon, it may be presumed that the attachment was effected by the Munsiff or Judge in exercise of his civil jurisdiction and not of his small cause jurisdiction. It is also noteworthy, as in the Travancore-Cochin Division Bench ruling, that no objection to jurisdiction was taken in the present case until the suit came to the first appellate stage. I may however add that the better procedure in such cases is to apply for transfer of the case from the small cause side to the civil side, even though the same Judge or Munsiff is in charge of both the courts. 8. In the circumstances of this case, I hold that the attachment and sale were valid. The second appeal is allowed, the decision of the lower courts is set aside and the suit is decreed. I pass a decree that if the appellant deposits in the trial court Rs. 139.15 p. and the costs of the respondent of the trial court within four months from today, the said amounts and the amount of Rs. The second appeal is allowed, the decision of the lower courts is set aside and the suit is decreed. I pass a decree that if the appellant deposits in the trial court Rs. 139.15 p. and the costs of the respondent of the trial court within four months from today, the said amounts and the amount of Rs. 150 already deposited by the appellant on 19th October 1956 will be paid to the respondent; that the respondent will be restrained by a permanent injunction from taking possession of the suit property, if he has not already taken possession; that if he has taken possession, the appellant will be entitled to recover possession on deposit of the aforesaid amounts ; that if the respondent has not already taken possession and if the appellant does not make the deposit within four months, the respondent is free to take possession; that if the appellant wants to get possession thereafter, he will have to deposit the amounts mentioned above; and that the respondent will pay the costs of the appellant in this court and in the lower appellate court.