JUDGMENT
Patkar, J.
1. In this case, the respondent firm obtained a decree for Rs. 184-8-0 against the estate of the deceased Niklav Santago Pereira in Small Cause Suit No. 324 of 1921, In execution of that decree, the respondents-judgment creditors attached the property alleged to belong to Niklav. The appellants, the heirs of Niklav’s brother Sebastian, claimed in execution that the property was not liable to attachment in execution of the decree against Niklav on the ground that the property did not belong to Niklav but belonged to Sebastian. The learned Subordinate Judge allowed the application and raised the attachment holding that the property was not liable to attachment and sale as belonging to Niklav. The respondents-judgment creditors appealed to the District Court of Thane. The learned District Judge held that the property under attachment belonged to Niklav, and, therefore, set aside the order of the lower Court, The heirs of Sebastian have filed this second appeal,
2. It is urged on behalf of the appellants that no appeal lay to the District Court as the order of the Subordinate Judge fell within the ambit of Order XXI, Rule 60, of the Civil Procedure Code. It is urged that the decree sought to be executed was passed by the First Class Subordinate Judge in Small Cause Suit No. 324 of 1921 and no appeal lay to the District Court against the order in execution of the decree of the Small Causes Court under Section 27 of the Provincial Small Causes Courts Act, IX of 1887. It is further urged that the finding of the lower appellate Court was not conclusive and binding in second appeal. It is contended, on the other hand, that the order of the Subordinate Judge in execution fell under Section 47 of the Civil Procedure Code as Sebastian was a party to the Small Cause suit and the appellants are the representatives of the parties in suit No. 324 of 1921, and the question related to the execution, his charge and satisfaction of the decree, and an appeal lay to the District Court. It was further urged, on behalf of the respondents, that the Small Cause Court suit was transferred to the ordinary jurisdiction of the First Class Subordinate Judge and an appeal lay to the District Court, and further that the finding of the lower appellate Court on a question of fact was binding in second appeal.
3. The first question is whether the order of the Subordinate Judge fell under Order XXI, Rule 60, or whether it fell under 8.47 of the Civil Procedure Code. If the appellants are considered to be strangers to the decree in the Small Cause civil suit No. 324 of 1921 obtained by the respondents, it is clear that the order of the Subordinate Judge would fall under Order XXI, Rule 60, and would be conclusive under Order XXI, Rule 63, and no appeal would lie to the District Court against the order of the Subordinate Judge. It has, however, been held that if the property in the hands of the legal representative is attached and the legal representative objects to the attachment on the ground that the property attached is his own property and does not form part of the estate of the deceased judgment-debtor, the objection to the attachment would fall under Section 47 of the Civil Procedure Code on the ground that it is made by a representative of a party to the suit: see Murigeya v. Hayat Saheb (1898) I.L.R. 23 Bom. 237. Vengapayyan v. Karimpanakal Parvati (1902) I.L.R. 26 Mad. 501. Kali Charan v. Jewat Dube (1905) I.L.R. 28 All. 51. Madhusudan Baa v. Gobinda Pria Chowdhurani (1899) I.L.R. 27 Cal. 34, and Chowdry Wahed Ali v. Mussamut Jumaee. (1872) 11 Beng. L.R. 149, p.c. In the present case the decree was obtained by the respondents after the death of Niklav but his brother Sebastian was made one of the parties to the suit. The decree was passed against the estate of Niklav, If Sebastian had been alive and had been made a party to the execution proceedings and had raised an objection to the execution on the ground that the property belonged to him and not to Niklav, it would follow from the cases cited above that the order of the Subordinate Judge rejecting his application for raising the attachment would fall within the ambit of Section 47 of the Civil Procedure Code, for it would be a question arising between the parties to the suit or their representatives relating to the execution, discharge or satisfaction of the decree. Does it make any difference on the ground that the execution is now bought not against Sebastian but against the appellants who are the representatives of Sebastian? The decision in Gohuleing Bhikaram v. Kisansingh (1910) I.L.R. 34 Bom. 546, s.c. 12 Bom. L.R. 539, would support the contention on behalf of the respondents that the objection of the legal representative of the defendant would fall within Section 244 of the Civil Procedure Code of 1882, corresponding to Section 47 of the present Code. In Chunilal v. Kashibhai , it was held that where a creditor sued the father and the son, and obtained a decree against the estate of the son only, the father, though the suit had been dismissed against him, was still a party to the suit within the explanation to Section 47 of the Civil Procedure Code, and any question arising between him and the decree-holder with regard to the execution of the decree would have to be determined by the Court executing the decree and not by a separate suit. According be the explanation to Section 47, the defendant, against whom a suit has been dismissed, is a party to the suit. There must be a legal representative brought on the record as a party before a valid decree is passed against the estate of a deceased defendant, otherwise the decree would be a nullity: see Shivaji v. Vithal . Sebastian was, therefore, a party to the Small Cause suit. It would, therefore, follow that the decision of the Subordinate Judge in this case would fall within Section 47 of the Civil Procedure Code as it was between the plaintiffs and the representatives of the defendant in the suit and related to the execution, discharge and satisfaction of the decree. We think, therefore, that the order of the Subordinate Judge was appealable to the District Court as it would amount to a decree under Section 2, Clause (2), of the Civil Procedure Code,
4. The next question is whether the appeal to the District Court was barred under Section 27 of the Provincial Small Causes Courts Act Reliance is placed on behalf of the appellants on the decisions in Mavula Ammal v. Mavula Maracoir (1906) I.L.R. 30 Mad. 212. Narayan v. Nagin das (1905) I.L.R. 30 Bom. 113, s.c. 7 Bom. L.R. 641. and Murlidhar Damodar v. Salcharam Govind (1889) P.J. 278, first sight, these decisions would support the contention on behalf of the appellants that the decree being passed by the First Class Subordinate Judge in a Small Cause suit, an appeal in the execution proceedings would be barred under Sections 27 and 32 of the Provincial Small Causes Courts Act. In the present case, the execution of the decree was transferred by Exhibit 8 to the ordinary jurisdiction of the First Class Subordinate Judge. Under Section 7(a)(III), so much of the body of the Code as relates to the execution of decrees against immovable property shall not extend to Courts constituted under the Provincial Small Causes Courts Act, 1897, or to Courts exercising the jurisdiction of a Court of Small Causes under that Act, Under Order L, Rule 1(a)(ii), so much of the schedule as relates to the execution of decrees against immovable property shall not extend to Courts exercising the jurisdiction of a Court of Small Causes under the Provincial Small Causes Courts Act; and under Order XXI, Rule 82, sales of immovable property in execution of decrees cannot be ordered by a Court of Small Causes. It was, therefore, necessary to transfer the Small Cause Court decree to the First Class Subordinate Judge’s ordinary jurisdiction in order to enable the Court to sell the immovable property in execution of the Small Cause Court decree. Section 34, Clause (a), of the Provincial Small Causes Courts Act regulates the procedure of transfer of execution by a Court invested with Small Cause Court jurisdiction to its ordinary jurisdiction. Under Section 33 of the Provincial Small Causes Courts Act, a Court invested with the jurisdiction of a Court of Small Causes with respect to the exercise of that jurisdiction, and the same Court with respect to the exercise of its ordinary jurisdiction shall, for the purposes of that Act and the Code of Civil Procedure, be deemed to be different Courts. Under Section 42 of the Civil Procedure Code, “the Court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself.” Therefore, the First Class Subordinate Judge’s Court executing the decree in its ordinary jurisdiction shall have the same powers in executing the decree as if it had been passed by it in its ordinary jurisdiction, and its order in executing such decree shall, according to Section 42 of the Civil Procedure Code, be subject to the same rules in respect of appeal as if the decree had been passed by itself. Therefore, in considering the question of appeal, regard must be had not to the power of the Court which passed the Small Cause Court decree, but we have to consider the decree as if it had been passed by the First Class Subordinate Judge in his ordinary jurisdiction, and if the First Class Subordinate Judge had passed the decree in his ordinary jurisdiction, an appeal would “”” clearly lie to the District Court, The order, therefore, in execution passed by the First Class Subordinate Judge after transference of the decree to his ordinary jurisdiction would be appealable to the District Court under a 42 of the Civil Procedure Code. This view is supported by the decision relied on of behalf of the respondent in the case of Adhar Chandra Gope v. Pulin Chandra Shaha (1914) 19 C.W.N. 1085. It does not appear from the cases of Mavula Ammal v. Mavula Maracoir (1906) I.L.R. 30 Mad. 212, and Murlidhar Damodar v. Sakharam Govind (1889) P.J. 278, whether the execution was transferred from a Court exercising Small Cause Court jurisdiction to a Court in its ordinary jurisdiction. In Narayan v. Nagindas (1905) I.L.R. 30 Bom. 113, s.c. 7 Bom. L.R. 641, it must be assumed that the decree was transferred from the Small Cause Court jurisdiction to the ordinary jurisdiction as immovable property was attached in execution. The order in execution in Narayan v. Nagindas, would, according to a 42, be subject to the same rules in respect of appeal as if the decree had been passed by the Court executing it. The decree in that case was for Rs. 155-8-0, and even if the decree had been passed by the First Class Subordinate Judge in his ordinary jurisdiction, a second appeal would not lie under Section 102 of the Civil Procedure Code. The question whether a first appeal lies against the order of the First Class Subordinate Court in its ordinary jurisdiction in execution of a decree transferred to it from its Small Cause Court jurisdiction depends, under Section 42 of the Civil Procedure Code, upon the character of the tribunal axecuting the decree and not upon the nature of the claim, The construction of the words “suit of the nature cognizable in Courts of Small Causes” in Section 586 of the Civil Procedure Code of 1882, corresponding to Section 102 of the present Code, does not depend upon the tribunal in which the suit is brought, but is equally applicable where the suit is brought in a Court of Small Causes or in any other Court. I think, therefore, that though a second appeal may not lie under Section 102 of the Civil Procedure Code, an appeal lay to the District Court, This view is supported by the decisions in the cases of Perwmal v. Venkatarama (1887) L.R. 11 Mad. 130. Lala Kandha Pershad v. Lala Lal Behary Lal (1898) I.L.R. 25 Cal. 872. Bhimaraju Sreerama Sastrulu (1919) 37 M.L.R. 303, and Atwari v. Maiku Lal (1903) I.L.R. 31 All. 1. It, therefore, follows that the appeal to the District Court is not barred by Sections 27 and 82 of the Provincial Small Causes Courts Act, According to the decision in Narayan v. Nagindas (1905) I.L.R. 30 Bom. 113, s.c. 7 Bom. L.R. 641, no second appeal lies against an order in execution of a decree in a Suit of the nature cognizable by the Court of Small Causes. In the present case, the decree was passed by the First Class Subordinate Judge of ThanA in his Small Cause jurisdiction and related to an amount of Rs. 134-8-0, and under B. 102 of the Civil Procedure Code no second appeal would lie.
5. It is, therefore, unnecessary to go into the question whether the finding of the lower appellate Court is binding on us in second appeal.
6. We would, therefore, dismiss the second appeal with costs.
Baker, J.
7. This appeal, though at first sight very simple, raises a number of points of law. The original suit was by a creditor against one Nicolao who died before decree, and his brother Sebastian was brought on record as his heir. The decree was passed against the estate of Nicolao for the amount of Rs. 184-8-0, After decree Sebastian died, and the present appellants, his heirs, were brought on record in his place. On an application being made by the decree-holder to attach the immovable property in dispute as the property of Nicolao, the appellants successfully objected that the property belonged to them and not to Nicolao, but on appeal this finding was set aside by the District Court, which held that the property under attachment belonged to Nicolao until his death, and the appellants’ application was, therefore, dismissed. The appellants make this second appeal.
8. The first point raised is that the suit being of a Small Cause Court nature, no appeal lay to the District Court, and, therefore, the decree of the District Court is ultra vires and without jurisdiction, and the decree should be set aside, and the decree of the first Court restored, It appears, however, that the execution of the decree was transferred to the regular jurisdiction of the First Class Subordinate Judge as was necessary, as a Court of Small Causes has no authority to attach and sell immovable property under Section 7 of the Civil Procedure Code, Order XXI, Rule 82, ands Order L. There was an application for transfer of the darkhast to the regular jurisdiction of the First Class Court, and under Section 42 of the Civil Procedure Code the application for execution must be held to be one in a regular suit. The appeal, therefore, to the District Court would not be barred by reason of the suit being originally one of a Small Cause Court nature.
9. Then it is contended that the present appellants were not the representatives of the judgment-debtor Nicolao, and, therefore, the order was made under Order XXI, Rule 60, and there would be no appeal. Nicolao died during the hearing and Sebastian, his brother, was brought on record as his legal representative. Sebastian died after the decree, and the present appellants were brought on record as his legal representatives. It has been held that if property in the hands of a legal representative is attached, and he objects to the attachment on the ground that the property attached is his own and does not form part of the estate of the deceased judgment-debtor, the claim falls under Section 244 (Section 47 of the present Code) of the Code of Civil Procedure on the ground that it is made by a representative of the party to the suit: see Murigeya v. Hayat Saheb (1898) I.L.R. 23 Bom. 237. The decree was passed against the estate of Nicolao, and any objection by Sebastian against the attachment on the ground that the property belonged to him would have fallen under Section 47 of the Civil Procedure Code. Although the decree was against the estate of Nicolao, the estate must be represented by somebody. It was represented by Sebastian after the death of Nicolao, and the present appellants have been brought on record as the representatives of Sebastian after his death. They must, therefore, be regarded as representatives of the parties to the suit, and their objection falls under Section 47, and an appeal certainly lay to the District Court. The question is, however, whether a second appeal will lie to this Court. In view of the ruling in Narayan v. NagindaS (1905) I.L.R. 30 Bom. 113, s.c. 7 Bom. L.R. 641, which lays down that no second appeal lies against an order in execution of a decree in a suit of the nature cognizable by a Court of Small Causes, it appears that no second appeal will lie. The facts of that case are indistinguishable from those of the present. The decree was passed by the First Class Subordinate Judge in his small cause jurisdiction for the recovery of Rs, 155-3-0, and in the present case the decree was passed by the same judge in his Small Cause Court jurisdiction for recovery of Rs. 184-8-0. In Narayan v. Nagindas two houses were attached in execution of the decree under the ordinary jurisdiction of the First Class Subordinate Judge, and defendant No. 5 applied for removal of the attachment on the ground that he and the husband of the deceased were united brothers and the attached property belonged to him. In these circumstances I am of opinion that no second appeal will lie, and it is unnecessary to go into the merits. There is no question of jurisdiction, and the appeal must, therefore, be dismissed with costs.
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