Case No: Civil Appeal No. 119 of 1979
Judge: Kemaluddin Hossain,
Court: Appellate Division ,,
Advocate: Dr. Rafiqur Rahman,Mr. Abdus Salam Khan,,
Citation: 32 DLR (AD) (1980) 212
Case Year: 1980
Appellant: Sayed Ali
Respondent: Sree Gopal Chandra Das and others
Subject: Procedural Law,
Delivery Date: 1980-3-11
Kemaluddin Hossain, J
CJ, Ruhul Islam, J
Badrul Haider Chowdhury, J
Shahabuddin Ahmed, J
Sree Gopal Chandra Das and others
March 11, 1980.
The Code of Civil Procedure, 1908 (Act V of 1908)
The Small Causes Act, 1887 (IX of 1887)
No separate execution proceeding is required to enforce the order made under section 144 of the Code of Civil Procedure. The power conferred to the Court of first instance under section 144 of the Code is available to a Court of Small Causes……………(11)
Cases Referred to-
Gopal Pario vs. Searna Bewa 34 C.W.N. 707: Swamirao vs. Valentine, AIR 1920 Bom. 12; Balaram Reddi vs. Govinda Reddi A.I.R 1947 Mad. 54; Allahabad Theatres vs. Ram Sajiwan. A.I.R. 1949 All 730.
Abdus Salam, Senior Advocate, Mohfuzur Rahman, Advocate, instructed by B.C. Panday, Advocate-on-Record—For the Appellant.
Rafiqur Rahman Senior Advocate, instructed by Zinmur Ahmed,
Advocate-on-Record—For the Respondent.
Civil Appeal No. 119 of 1979.
(From the Judgment & order dated 28.7.77 passed by the High Court in Civil Revision Case No. 379 of 1977).
Kemaluddin Hossain, CJ.
In this appeal facts are not complicated nor they require to be recounted in detail, but a short but important question of law in involved, in that, whether a Court of Small Causes can exercise powers under section 144 of the Code of Civil Procedure. Facts are that the plaintiff respondents got an ex-parte decree for ejectment on 27-2-76 against the tenant defendant, and in execution of the decree got delivery of possession through Court on 17-3-76. The defendant-appellant filed an application under Order 9, rule 13 of the Code of Civil Procedure to set aside the ex-parte decree which was allowed and then he filed an application under section 144 of the Code for restoration of possession to the suit premises,, but it was disallowed on the ground that the Court of Small Causes was not authorised in law to exercise jurisdiction under section 144 of the Code. On revision the learned Single Judge held that the application under section 144 was misconceived and incompetent and so dismissed the revision case.
2. The principal question is whether section 144 of the Code is available to a Court of Small Causes. To appreciate some provisions of the Small Cause Courts Act and Code of Civil Procedure are to be mentioned. First, to turn to some of the provisions of the Small Cause Courts Act. We find that section 33 of the Act says that Small Causes Court and Civil Court are distinct and should be always treated as different Courts; section 17 provides that the procedure prescribed in the Code of Civil Procedure, save it has been excepted by that Code and this Act, the Small Causes Court shall follow in all suits cognizable by it, the procedure prescribed in the Code of Civil Procedure, and section 16 says that suits cognizable by a Court of Small Causes shall not be tried by any other Court. To revert back to section 17 again it appears that it contemplates that final order passed by a Small Causes Court will be a decree.
3. Keeping these provisions of the Small Cause Courts Act in view, if we refer to the Code of Civil Procedure, we find, section 7 which has been impliedly referred to by Small Cause Courts Act, says that what has been provided in clauses (a) and (b) to that section shall not be available to a Court of Small Causes and it is to be remembered that section 144 of the Code is not one of the excepted provisions mentioned therein.
4. A combined reading of the aforesaid provisions of the two enactments clearly indicates that the trial provisions of the Civil Procedure Code are available to a Court of Small Causes except to the extent the Small Cause Courts Act or Code of Civil Procedure excludes specifically the provisions of the Code from its application to a proceeding before a Court of Small Causes. It, therefore, follows that the trial procedure prescribed in the Code shall be followed in all suits cognizable by a Court of Small Causes except to the extent excluded. Inevitable conclusion, therefore, is that the provisions of section 144 of the Code which has not been excluded is available to the Court of Small Causes and the power is to be exercised when language of the section is attracted to the facts of the case before it.
5. On turning to section 144 of the Code, we find that it says that the Court of the first instance shall, on an application made to it by a party entitled to the benefit by way of restitution or otherwise consequent upon the variation or reversal of a decree, cause such restitution as to place the parties in a position which they would have occupied but for the decree that has been varied or reversed In making restitution the Court has been conferred very wide powers including orders for refund of costs, payment of interest, damages, compensation and mesne profits consequent on such variation or reversal. It is also to be remembered that the benefit under this section cannot be had by suit since sub-section (2) clearly bars it.
6. It is now to be seen, whether there is anything in section 144 of the Code which bars a Court of Small Causes from exercising the powers conferred under the section. One such view is that the variation and reversal of the decree must be by a superior Court, and so if the decree is varied or reversed by the trial Court, which is mentioned in the section as the Court of the first instance, then this power is not available. This view gets support from the case of Gopal Pario vs. Searna Bewa 34 C.W.N. 707 of the Calcutta High Court. As against this view, there are decisions of other High Courts of the subcontinent which have taken a contrary view. We may mention the decisions of three High Courts namely, that of Bombay, Madras and Allahabad.
7. The Bombay High Court in Swamirao Vs. Valentine, A.I.R. 1920 Bombay 12, has held that where in execution of an ex-parte decree property is recovered from the judgment-debtor, the latter is entitled to restitution of the property on the ex parte decree being set aside.
8. In the Madras decision, Balaram Reddi Vs. Govinda Reddi A.I.R—1947 Mad. 54, It has been held that a judgment-debtor is entitled to restitution of property sold in execution of ex parte decree on its reversal under certain conditions laid down in the judgment.
9. The decision of the Allahabad High Court in the case of Allahabad Theatres vs. Ram Sajiwan A.I.R. 1949 All 736, is that words varied or reversed would cover a case in which a decree has been varied or reversed by the same Court. Where an exparte decree is passed and possession delivered to the plaintiff in pursuance of the decree and the decree is set aside and the defendant applies for restitution under section 144 of the Code, he can get the relief under the said section.
10. It therefore, appears the preponderant view is that the variation and reversal does not convey the idea of superior Court making such order, and we think that is in accord with the language of the Code where no such qualifying word has been used. We do not find any cogent reason to restrict the language and limit of its scope and operation.
11. Another contention raised by Mr. Rafiqur Rahman in support of exclusion of jurisdiction under this section of a Court of Small Causes is that under section 2 of the Code, an order passed under section 144 of the Code is a decree which is appealable and whereas the decree passed by the Small Causes Court is not appealable, the order passed under the section will not acquire the character of a decree: The argument can be answered, if we look at the character of the proceeding before a Court of Small Causes. Reference has already been made to the provisions of the Small Cause Courts Act to show that a proceeding before the Small Causes Court is known as a suit and it ends with a decree. Therefore, we do not find any bar in treating the order passed by the Court of Small Causes by referring to section 2 of the Code as a decree. The question of appeal is a separate question. The right of appeal is to be specifically conferred by law. No doubt the Civil Procedure Code provides that when there is a decree, an appeal lie to the next higher Court but then the right of appeal has been expressly taken away from a decree passed by a Court of Small Causes. So, the order passed by a Court of Small Causes no doubt will be a decree but will not be appealable. Bar to appeal cannot be an impediment of treating an order made under section 144 of the Code as a decree or its application to a Court of Small Causes. It is to be observed that no separate execution proceeding is required to enforce the order made under section 144 of the Code. On a consideration of the various provisions discussed above and the contention of the learned Counsel for the respondents, we are of the opinion that the power conferred to the Court of first instance under section 144 of the Code is available to a Court of Small Causes and in that view of the matter, we set aside the orders of the Courts below and allow the appeal without any order as to costs and remit the case to the Court of first instance to dispose of the matter in accordance with law.