Gauri Shanker Misra v. Shiv Shanker Lal — 1978 DIGILAW 563 (ALL)

JUDGMENT K. C. Agarwal, J. 1. THESE two connected revisions arise from a judgment dated 14-10-1977. The relevant facts are that the firm M/s. Shiv Shanker Lal Ram Nath, Bara Bazar, Bareilly, filed a suit for ejectment against Gauri Shanker Misra and two others. These two others were M/s. Tauamal Salig Ram and M/s. Mehrotra Stores. The suit was decreed on 19-2-1976. The defendants preferred a revision against the said decree of the Judge Small Causes. The revision was also dismissed. In the meantime the execution, which was started by the decree holder by means of an application before the Judge Small Cause Court on 23-2-1976, was taken up. The judgment debtor Gauri Shanker filed an objection to the execution application. As the revision was pressed only on one ground, I need not mention the various grounds which had been raised in the objection. In the objection, the judgment debtor alleged that as the decree passed by the Judge Small Causes was one which could not be executed against an immovable property, the execution was liable to be struck off. The Judge Small Causes rejected the objection on 20-5-1977. Against the aforesaid order, a revision was preferred under Section 25 of the Provincial Small Cause Courts Act by Gauri Shanker Misra to the court of the District Judge. In the revision, the order of the Judge Small Causes was modified, and the objection filed by the judgment debtor was accepted partly. By the said order, the learned First Additional District Judge although held that a decree passed by the Judge Small Causes could be executed by the civil court in the regular side, and directed the same to be sent to a court of competent jurisdiction under Section 39 of the Code of Civil Procedure. Aggrieved by the aforesaid judgment, both the parties filed revisions in this Court. The revision filed by the decree holder was Revision No. 2580 of 1977, whereas the one which was filed by Gauri Shanker Misra, the judgment debtor, was numbered as Revision No. 2455 of 1977. 2. IN Revision No. 2580 of 1977, Sri R. N. Bhalla, appearing for the decree holder, urged that the view of the court below that the decree for ejectment could not be executed by the Judge Small Causes was erroneous. 2. IN Revision No. 2580 of 1977, Sri R. N. Bhalla, appearing for the decree holder, urged that the view of the court below that the decree for ejectment could not be executed by the Judge Small Causes was erroneous. He contended that the decree could be executed by the Judge Small Causes and that there was no necessity to transfer the same for execution to the court of Mupsif in the regular side. At this stage, it appears relevant to discuss in brief some of the provisions of the Provincial Small Cause Courts Act and that of the Code of Civil Procedure which will have bearing on the controversy involved in the present revisions. The Provincial Small Cause Courts Act, 1887, was enacted with a view to provide a speedy and cheep justice to the litigants. Section 15 (1) of the said Act lays down that a Court of Small Causes shall not take cognizance of the suits specified in the Second Schedule as suits excepted from the cognizance of a Court of Small Causes by which the suit is triable. The second Schedule of the Act specifies the suits except from the cognizance of the Court of Small Causes. By U. P. Civil Laws Amendment Act 37 of 1972, the Legislature made a provision for a suit for the possession of immovable property or for the recovery of an interest in such property, but not including a suit by a lessor for the eviction of a lessee from a building after the determination of his lease. As a result of this amendment made by the aforesaid Civil Laws Amendment Act, suits for eviction by a lessor against a lessee became cognizable by the Judge Small Causes. Section 16 of the Provincial Small Cause Courts Act provides for the exclusive jurisdiction of the Small cause Courts in the matters excepted. 3. SO far as the question of executing a decree obtained from a Judge Small Causes is concerned, resort will have to be made to the Code of Civil Procedure. Section 16 of the Provincial Small Cause Courts Act provides for the exclusive jurisdiction of the Small cause Courts in the matters excepted. 3. SO far as the question of executing a decree obtained from a Judge Small Causes is concerned, resort will have to be made to the Code of Civil Procedure. Section 7 of the Code of Civil Procedure provides that the following provision shall not extend to Courts constituted under the Provincial Small Cause Courts Act, 1887 : (a) so much of the body of the Code as relates to ; (i) suits excepted from the cognizance of a Court of Small Causes ; (ii) the execution of decrees in such suits ; (iii) the execution of decrees against immovable property ; and (b) the following sections, that is to say- Section............so far as they authorise or relate to- (i)..., (ii)..., (iii)..., (iv)..., Section 38, however, confers the power of transfer of a decree laying down that a decree passed by a court may either be executed by itself or it may be sent for execution to another Court. Section 39 of the Code deals with the transfer of decree. The next provision is Section 42, which provides that the transferee court shall have the same powers in executing such, a decree as if it had been passed by itself. 4. A review of the provisions of the Provincial Small Cause Courts Act and the Code of Civil Procedure would show that Section 7 (a) (iii) provides that a decree obtained from a Court of Small Causes cannot be executed against immovable property. Sri Raja Ram Agrawal, counsel appearing for the judgment debtor, contended that as a decree for ejectment of a tenant by a landlord is a decree in respect of immovable property, the execution of such a decree is barred by Clause (iii) of Clause (a) of Section / of the code of Civil Procedure. This raises a controversy whether a decree obtained from the Court of Small Causes by a landlord as against his tenant is a decree, the execution of which is sought against immovable property. This raises a controversy whether a decree obtained from the Court of Small Causes by a landlord as against his tenant is a decree, the execution of which is sought against immovable property. Sri R. N. Bhalla contended that a decree for ejectment obtained by a landlord as against his tenant is not a decree failing under sub-clause (iii) of Clause (a) of Section 7 inasmuch as a decree obtained by a landlord is for ejectment of a tenant which is sought to be executed through the aid of the Court. The basis of a decree in such a suit is relationship of landlord and tenant and not title. Hence, the execution of a decree by a landlord for ejectment of a tenant could not be considered as execution of decree against immovable property. Reference in this connection was made by Sri R. N. Bhalla to a case of the Maharashtra High Court reported in Brij Mohan v. Tattatraya, 1975 Maharashtra Law Journal 97. It is no doubt true that the aforesaid decision supports the contention of Sri R. N. Bhalla, but a Division Bench of our Court reported in Sarju Prasad v. District Judge Kanpur, AIR 1975 Alld. 13, took a contrary view. In the opinion of the Division Bench, a decree obtained by a landlord as against a tenant was one to which sub-clause (iii) of clause (a) of Section 7 CPC applied. I am bound by the decision of the Division Bench, and, therefore, even if it be correct that some of the aspects found in the Maharashtra case were not brought to the notice of the Division Bench deciding the case before it, that does not take away the efficacy and binding character of the said decision on me. I am, therefore, not prepared to accept the argument of the learned counsel for the decree holder that the execution of a decree obtained by a landlord against a tenant is not the execution against immovable property. This concludes Civil Revision No. 2580 of 1977 against the plaintiff. Now the question arises for the second revision. This revision was preferred by the judgment debtor against the direction of the Judge Small Causes that the decree ought to have been sent to the Munsif for execution. This concludes Civil Revision No. 2580 of 1977 against the plaintiff. Now the question arises for the second revision. This revision was preferred by the judgment debtor against the direction of the Judge Small Causes that the decree ought to have been sent to the Munsif for execution. The argument advanced by the learned counsel for the judgment debtor is based on Section 39 of the Code of Civil Procedure, as amended by Act No. 104 of 1977. The relevant portion of Section 39 reads as under :- "(1) The court which passed the decree may on the application of the decree holder send it for execution to another Court (of competent jurisdiction). (a)....(b)......(c)...... (2)............... (3) For the purposes of this section, a Court shall be deemed to be a court of competent jurisdiction, if at the time of making the application for the transfer of decree to it, such Court would have jurisdiction to try the suit in which such decree was passed." 5. THE submission of the learned counsel for the judgment debtor was that the words "of competent jurisdiction" point out that the Court to which the decree is sent for execution should be a court having jurisdiction to entertain the suit. It was submitted that as after U. P. Act No. 37 of 1972 a suit for ejectment by a landlord against a tenant can be entertained only by a Judge Small Causes, and the transferee court has no jurisdiction to entertain the said suit, the transfer made was ineffective and invalid. 6. THE discussion made above would indicate that according to the defendant, neither was the decree executable by the Judge Small Causes nor by a regular civil court. It is the duty of a court of law to see that a decree passed by it is executed and that the end result for which the plaintiff fought was achieved. A Court should endeavour its most to see that a decree holder gets the fruits for which he has been lighting, it would come as a rude shock to a decree holder to find that after he gets a decree he cannot get the benefits. A Court should endeavour its most to see that a decree holder gets the fruits for which he has been lighting, it would come as a rude shock to a decree holder to find that after he gets a decree he cannot get the benefits. Reverting to the argument of the learned counsel for the judgment debtor, the same was that with the audition of the words "of competent jurisdiction" in sub-section (3) of Section 39 CPC a decree for ejectment passed by a Small Causes Court could not be executed as the regular civil court has no jurisdiction to entertain a suit for ejectment against a tenant. At this place, i may refer to the reason which led to the amendment. The same was that the section, as it stood before the amendment, gave rise to two conflicting opinions as to whether ; (i) the transferee court must be a court of competent pecuniary jurisdiction, and (ii) if so, whether the competence should be judged with reference to the decree or the suit. In order to resolve the conflict, the Law Commission in its Fourteenth Report recommended the amendment of Section 39. This was subsequently adopted in the Twenty-seventh Report of the Law Commission. While dealing with Section 39, as it stood before the amendment, the law commission observed as under : "1. At present, there is a (conflict of decisions on the question whether (i) the transferee court must be a court of competent pecuniary jurisdiction and (ii) if so, whether the competence should be judged with reference to the decree or the suit. 2. One view is, that provisions of this section are controlled by Section 6 and a decree cannot be transferred under sub-section (1) for execution to another court if the amount or value of the decree exceeds its pecuniary jurisdiction. The contrary view was taken in a Madras case, where the decree was sent on the applications of the decree holder. Section 39 (1), it was said does not contain any such limitation, though Section 39 (2) does. 3. It has also been held, that the value of the suit in which the decree was passed must be within the pecuniary limits of the jurisdiction of the court to which the decree is proposed to be sent. Section 39 (1), it was said does not contain any such limitation, though Section 39 (2) does. 3. It has also been held, that the value of the suit in which the decree was passed must be within the pecuniary limits of the jurisdiction of the court to which the decree is proposed to be sent. For a different view, to the effect that the decretal amount determines pecuniary jurisdiction, see Shantt Lal v. Jammi Kuer, ILR 1940. All 318 = 1940 All. 331, 334 (DB). 4. See also the discussion about the section in a recent Supreme Court case in Ramana v. Nallaparaju, AIR 1956 SC 87 (Venkatarama Ayyar, J). 5. It is considered, that the position should be made clear and that the transferee court must have pecuniary competence to deal with the suit in which the decree was passed: amount of the decree is immaterial, as pecuniary jurisdiction of a court is ordinarily judged with reference to the nature of the claim in the suit, and not the nature of the relief decreed. Hence, the amendment. 7. IN pursuance of the aforesaid report of the Law Commission that the words "of competent jurisdiction" have been added at the end of the expression "sent for execution to another court" in sub-section (1) of Section 39 CPC and a new sub-section (3) has been added. This amendment has clarified the position that the transferee court must have pecuniary competence to deal with the suit in which the decree was passed. At this place, I may mention the cases in which the two views contradictory to each other with respect to Section 39 had been taken. One view, as already observed, was that under Section 59 a decree could not be transferred for execution to another Court if the amount or value of the decree exceeds its pecuniary jurisdiction. The cases worthy of being mentioned are Firm Ganesh Das v. Amuluk Chand, AIR 1940 Cat. 161 (DB) and Durga Charan v. Uma Tara, ILR 16 Cal. 465 (DB). The contrary view taken was of the Madras High Court reported in Abdulla Saheb v. Ahmed Hussain Saheb, AIR 1914 Madras, 206. 8. READ in the light of the recommendation of the Law Commission, it would be seen that the words "of competent jurisdiction" have to be restricted in their operation. 465 (DB). The contrary view taken was of the Madras High Court reported in Abdulla Saheb v. Ahmed Hussain Saheb, AIR 1914 Madras, 206. 8. READ in the light of the recommendation of the Law Commission, it would be seen that the words "of competent jurisdiction" have to be restricted in their operation. They do not mean that the Court executing the decree should have the jurisdiction over the subject matter and to pass a decree in the suit itself. There are no reasons which could justify the taking of the view canvassed by the learned counsel for the plaintiff. It was then urged that the words used in Section 39 CPC being clear, explicit and unambiguous, this Court has no power to look into the Report of the Law Commission and to negative the connotation of the words "of competent jurisdiction" suggestive of it. The general rule, as observed by Craies in his book, is ; "If the words of the Statute are themselves precise and unambiguous they no more can be necessary than to expound those words in their ordinary and natural sense. The words themselves alone do in such a case best declare the intention of the law giver." 9. IN the instant case the position however, is different. The historical background which led to the amendment of Section 39 has already been noted by us above. It was to resolve the conflict amongst the various High Courts that the amendment was made. Keeping this background in view, one will come to the irresistible conclusion that the words "of competent jurisdiction" should be given a restricted meaning. In Udayan Chinubhai v. R. C. Bali, AIR 1977 SC 2319 , the Supreme Court was faced with more or less a similar argument. In that case, the question arose about the meaning of the explanation added to Section 12 of the Limitation Act. By the said Explanation, the provision made was that in computing the period of limitation for filing an appeal, any time taken by the court to prepare the decree or order before an application for a copy thereof is made was entitled to be excluded. Before the addition of this Explanation in Section 12 of the Limitation Act there was a sharp cleavage of opinions in the High Courts with regard to the expression "time requisite for obtaining a copy of the decree or an order". Before the addition of this Explanation in Section 12 of the Limitation Act there was a sharp cleavage of opinions in the High Courts with regard to the expression "time requisite for obtaining a copy of the decree or an order". This had come to the notice of the Law Commission and after noticing the conflict, the Law Commission made a recommendation to add the Explanation in order to make the position absolutely clear and to avoid any further controversy in the matter. In fact, the Law Commission in its wisdom went to the extent of even suggesting the phraseology of the expression. The argument advanced which found favour by the Bombay High Court in Subhash Ganpatrao Buty v. Maroti Krishnaji Dorlikar, AIR 1975 Bombay 254, ran counter to the suggestion made by the Law Commission. The recommendation of the Law Commission was cited before the Bombay High Court. It, however, refused to look into it as in its opinion the language actually employed to determine the intention of the legislature was clear and that did not require the looking into the Law Commission's Report. The Supreme Court overruled the decision of the Bombay High Court, referred to the recommendations of the Law Commission, and held relying upon the recommendation of the Law Commission that the time spent in taking the copy before the decree was prepared was not liable to be excluded. This case of the Supreme Court goes a long way to support my view. In fact, as stated above, the words "of competent jurisdiction" could never have been added with a view to lay down that a transferee court executing the decree must have jurisdiction over the subject matter of the suit. Had that been the intention, the same would have been clearly provided. 10. THE words used are not such which lead to the conclusion suggested by the learned counsel for the defendant. The words have to be read in their context. Reading the same, its meaning has to be confined to the pecuniary jurisdiction and not the jurisdiction over the subject matter. 10. THE words used are not such which lead to the conclusion suggested by the learned counsel for the defendant. The words have to be read in their context. Reading the same, its meaning has to be confined to the pecuniary jurisdiction and not the jurisdiction over the subject matter. At this place, it appears useful to refer to a decision of the Supreme Court in Union of India v. Sankalchand, AIR 1977 SC 2328 , in which the Supreme Court observed as follows :- Learned counsel for the defendant referred to certain decisions of the Supreme court and our High Court with regard to the rule of interpretation which should be applied to the present case. All these cases are distinguishable and are not applicable. I do not consider it necessary to refer to those cases and to deal with each one of them separately, fn most of the cases cited, the view taken was that the Court cannot aid the legislature's defective phrasing of the Act. The Court cannot add and mend, and by construction make up the deficiencies. In arriving at the decision mentioned above, I have neither added anything to Section 39 CPC nor mended it for coming to the conclusion to which I have reached. 11. IN the result, both the revisions fail and are dismissed. Revision No. 2455 of 1977 is dismissed with costs, whereas the parties shall bear their own costs in Revision No. 2580 of 1977. Revisions dismissed.