JUDGMENT
Sale, J.
1. The plaintiff in this case seeks to enforce a mortgage against the defendant Nuffer Chunder Nundy executed by him in favour of the plaintiff on the 24th of November 1896, to secure a sum of Rs. 1,000 with interest, which sum the plaintiff alleges he advanced to the mortgagor as a loan. The mortgaged property consisted of three tiled huts situate in Calcutta, which the mortgagor either acquired by purchase or caused to be erected on land rented by him.
2. The plaintiff further alleges that the defendants Adhur Chunder Sett and Hridoy Nath Sett, in the month of September 1897, caused the said properties to be attached in execution of a money decree obtained by them against the mortgagor, and that he (the plaintiff) as mortgagee of the properties filed a claim in the Court of Small Causes, which was, on the 30th of November 1897, disallowed.
3. The plaintiff accordingly submits that the Sett defendants, the attaching creditors, are necessary parties to this suit, and he says they have been called on to redeem the said mortgaged properties, and the relief prayed against them is, that a Receiver may be appointed to take charge of the properties, and that they (the attaching creditors) may be restrained by and under the injunction of this Court from proceeding to a sale or other disposition of the said properties.
4. The defendant Nuffer Chunder Nundy has not appeared in the suit, but the defendants Adhur Chunder Sett and Hridoy Nath Sett have appeared to contest the plaintiff’s claim, and in their written statement make the following allegations:
5. That the mortgage in suit is a fraudulent transaction resorted to by the mortgagor in collusion with the plaintiff with the object of defeating the just claim of the attaching creditors.
6. That the decree, in execution of which the mortgaged properties have been attached, was made on the 21st of July 1897 in a suit instituted in the Small Cause Court on the 24th of November 1896, a day previous to the date of the alleged mortgage, in which the claim was in respect of a sum of Rs. 2,000 due from the defendant Nuffer Chunder Nundy on a hathchitta.
7. That the sum due to the attaching creditors under the said decree is Rs. 2,000, together with the sum of Rs. 254-12 awarded as costs.
8. That the claim filed by the plaintiff in the Court of Small Causes came on for hearing on the 2nd November 1897, when the Court found on the evidence that the alleged mortgage was not a genuine transaction; that it was a device concocted by the defendant Naffer Chunder Nundy, in conjunction with the plaintiff, to defeat the decree which the attaching creditors obtained against their judgment-debtor, and that the Court, accordingly, dismissed the plaintiff’s claim and allowed the sum of Rs. 100 as compensation to the judgment-creditors.
9. That the plaintiff had filed an application for a new trial which was then pending. That in pursuance of a consent order made by this Court on the 10th February 1898, the mortgaged properties had been sold, and the sale proceeds had been paid into Court to the credit of this suit.
10. At the hearing it was contended on behalf of the attaching creditors by way of a preliminary objection to the suit that the order of the Small Cause Court disallowing the plaintiff’s claim is a bar to the relief which is sought against them, and that the finding also of the Court as to the genuineness of the mortgage is conclusive between the parties, and that, as a result, the suit is not maintainable and ought to be dismissed as against them.
11. No evidence was adduced on either side upon the preliminary point, the argument proceeding upon the basis that the finding of the Small Cause Court in the claim suit was correctly stated in the defendant’s written statement. It was stated, however, and not disputed, that the plaintiff’s application for a new trial of the claim suit was withdrawn, and that the amount of the sale proceeds of the mortgaged properties now in Court is insufficient to satisfy in full the claim of the attaching creditors.
12. The procedure of the Small Cause Court is now regulated by Act XV of 1882 as amended by Act X of 1888 and I of 1895.
13. By Section 37 of the amended Act it is provided that, subject to the right to apply for a new trial, every decree and order of the Small Cause Court in a suit shall be final and conclusive.
14. The first; question then is, whether the order of the Small Cause Court disallowing the plaintiff’s claim–based on his mortgage, to have the attachment of the judgment-creditors removed, can be said to be an order made in a suit.
15. The procedure as to claims made in respect of attached property by persons other than the judgment-debtor is regulated by Section 26 of Act XV of 1882, paragraphs 2, 3 and 4, Sections 61 and 62 of the same Act, Sections 278, 279, 280, 281 and 282 of the Civil Procedure Code, and by Rules 49, 50 and 51 of the Small Cause Court rules of practice.
16. No doubt Section 23 of Act XY of 1882, which extended certain portions of the Civil Procedure Code, including the claim sections, to the Small Cause Court has been repealed by Section 12 of the Amending Act I of 1895, but, on the other hand, Section 9 of the same Amending Act continues in force the whole of the present practice and law of Procedure of the Small Cause Court, until this procedure has been superseded by a new procedure to be introduced by rules framed by the High Court.
17. The rules of practice of the Small Cause Court have been framed under the powers reserved to the Court by Section 9 of Act XV of 1882, as it stood before the Amending Act I of 1895 came into operation. By that section the Court was empowered, with the previous sanction of the High Court, to make rules to provide in such manner as it thought fit for all matters not specially provided for by the Act.
18. Section 61 of the Act provides: “If any claim is made to or in respect of any property seized under this chapter, or in respect of the proceeds or value thereof by any person not being the debtor, the Registrar of the Small Cause Court, upon the application of the bailiff who seized the property, may issue a summons calling before the Court the claimant and the person who obtained the warrant.”
19. The section, after providing for the stay of any suit which may have been brought in the High Court in respect of the claim, proceeds: “And a Judge of the Small Cause Court shall adjudicate upon such claim and make such order between the parties in respect thereof and of the costs of the proceedings as he shall think fit; and such order shall be enforced as if it were an order made in a suit brought in such Court. The procedure in the Small Cause Court in cases under this section shall conform, as far as may be, to the procedure in an ordinary suit in such Court.”
20. Section 62 gives the Court power to award compensation to the claimant, and provides that the order of the Judge awarding or refusing such compensation shall bar any suit for the recovery of compensation for any damage caused by the distress.-Similarly by Section 26, para. 2, it is provided “when any claim preferred or objection made under Section 278 of the Civil Procedure Code is disallowed, the Small Cause Court may in its discretion order the person preferring or making such claim or objection to pay to the decree-holder or to the judgment-debtor or to both by way of satisfaction as aforesaid such sum or sums as it thinks fit.” And further: “Any order made under this section may, in default of payment of the amount payable thereunder, be enforced by the person in whose favour it is made against the person against whom it is made, as if it were a decree of the Court,”
21. Rule 49 of the rules of practice provides that the claimant who is summoned before the Court under the provisions of Section 61 of the Act must file a plaint, and shall be the plaintiff, while the person who obtained the warrant shall be the defendant, and the matter shall then be treated as a suit. In every respect, therefore, both under the Act and under the rules and also under Section 278 and thefollowing sections of the Civil Procedure Code, a claim proceeding is to be treated and dealt with as a suit, and I have no doubt, therefore, that an order made in such a proceeding by the Small Cause Court is an order made in a suit within the meaning of Section 37 of the Act. Section 283 of the Civil Procedure Code, which expressly reserves to the party against whom an order is made in a claim proceeding to establish his right by suit, does not affect the present question, because that section has been excluded from application to a claim proceeding in the Small Cause Court by a notification issued by the Court under the powers reserved to it by Section 23 of the Act, which notification under Section 3 of Act X of 1888 is still in force.
22. I agree with the view expressed by Wilson, J., in the case of Ismail Solomon Bhamji v. Mahomed Khan (1891) I.L.R., 18 Cal., 296 (301), that the omission of Section 283 from the sections of the Procedure Code applied to the Small Cause Court was intended to preserve the finality of orders made in claim suits by the Small Cause Court.
23. If then the order of the Small Causa Court disallowing the plaintiff’s claim to interfere with the attachment of the defendants is final and conclusive between the parties, it would seem to follow that his claim in this suit to restrain the defendants from proceeding with their attachment is barred. But then it is said the order of the Small Cause Court disallowing the plaintiff’s claim is bad, because it was based upon a finding which was ultra vires, as it affected the plaintiff’s title on his mortgage. Tiled huts, it is contended, are immovable property, and the Small Cause Court had, therefore, no power to determine the question of the validity of the mortgage, as it involved a question of title to immovable property. The answer is that the plaintiff himself put the validity of his mortgage in issue in the proceeding by basing his claim to the attached property on his mortgage. How then can he be heard to say that the order complained of is bad, because the Court in making it determined the very question he invited it to determine? Moreover, assuming that tiled huts are for certain purposes immovable property, it is clear, and this I did not understand to be disputed, that by virtue of Section 28 of the Small Cause Court Act XV of 1882 popularly known as the tiled hut section–the mortgaged property for the purposes of execution must be deemed to be moveable property.
24. The words of the section “for the purposes of execution” must mean for all purposes of execution inclusive of the purpose of determining objections made to attachments. It would be hardly reasonable to suggest that what the Legislature intended was that for the purposes of issuing process tiled huts were to be deemed moveable property, whereas for the purposes of determining objections to such process they were to be deemed immovable property. I think, therefore, the Small Cause Court had under the circumstances and for the purposes of the plaintiff’s claim full power and authority to determine the question of the plaintiff’s title under his mortgage to the attached property, and that this question is now res judicata as between the parties.
25. It is to be observed that the Small Cause Court, under Section 282 of the Civil Procedure Code, if satisfied with the validity of the plaintiff’s mortgage, had power to continue the attachment subject to such mortgage. WILSON, J., in the case already cited, remarks as follows: “Under the rules of the Small Cause Court claims are not tried summarily, they are dealt with just as suits are with the same remedy in case of mistake by application for a new trial, and the Court has full power to award damages to either party. A person who thinks himself aggrieved by the seizure of goods in execution of a Small Cause Court decree has his choice of remedies. He may bring an ordinary suit in the proper Court, or he may make a claim in the Small Cause Court. In either case his rights are fully tried out, and it would, I think, be inconvenient and contrary to sound principle to allow him to try first one remedy and then the other.”
26. With these observations I entirely agree. This suit must be dismissed against the defendants Adhur Chunder Sett and Hridoy Chunder Sett, and the plaintiff must pay their costs on scale No. 2. Liberty to these defendants to apply for payment of the money in Court.
