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Report No. 27

Section 7

It has been stated that the absence of a power to attach immovable property under section 94 (b), read with Order XXXVIII, leads to injustice, becauSe:the creditor who sues in a Court of Small Causes does not have the benefit of attachment before judgment, with the result that when the decree is passed, the defendant would, in the meantime, have alienated all his immovable property. The question of making an amendment in the law so as to give the power to attach immovable property (before judgment) to Courts of Small Causes has therefore been considered.

One preliminary point may be considered. After the decree a Small Causes Court has no jurisdiction toexecute the decree against immovable property, and it has to be transferred for that purpose to the regular side of the Court.

But there may be no illogicality (as was suggested in some quarters), in making the suggested amendment, because, even after the suggested amendment, if a Small Causes Court attaches immovable property before judgment, the attachment will continue for the benefit of the decree-holder, and he can have the decree transferred to the, regular side for execution against the immovable property.

The real point is, that the absence of such a power has not led to any difficulty. Hence no amendment is proposed.

Section 8

Reference to sections 155-156 has been deleted, as these have been already repealed.

Section 9

1. The question whether, regarding suits for offices, any clarification is necessary has been considered. The present position is stated below:-

(i) Suits relating to religious offices to which fees are attached.-Such Suits raise no difficulty.1-2-3

(ii) Suits relating to religious offices to which fees are not attached.-These can be classified into:-

(a) offices which are attached to a sacred, spot;

(b) offices which are not so attached.

2. The Bombay High Court seems to have recognised a distinction between (a) and (b) above, and the majority of the decisions of the High Court allow a suit for an office under (a) above but not for an office under (b) above.4-5

3. The other High Courts do not seem to recognise this distinction.6-7-8-9

4. Since the distinction made between cases (a) and (b) is not recognised by the majority of the High Courts, it is unnecessary to amend the section.

It may be added, that the decision of the Privy Council10 to the effect that a suit for pecuniary benefits is a civil suit, even if it becomes necessary to determine a right to perform religious services, does not imply that other suits relating to religious offices cannot be entertained. (In that case, the right claimed was that of-Adhyapaka Mirass-reciting certain religious texts, etc., in a temple-and the claim was for recovery of certain benefits in kind earned by the defendants by illegally exercising that right).

As to suits for religious rites, etc., (apart from office), see the recent decision of the Supreme Court11.

1. Muhammad v. Syad Ahmed, (1861) 1 BHC, Appendix p. xviii, cited in Mulla CPC (1953), p. 26.

2. Ghela Bhai v. Hargoyan, ILR 36 Born 94.

3. Girja Shankar v. Murlidhar, ILR 45 Born 234: AIR 1921 Born 209.

4. Kasam Khan v. Kaji Isub, ILR 50 Born 148: AIR 1926 Born 161, which recognises this distinction.

5. For earlier cases, see-Lima v. Rama, ILR 13 Born 548; Gursangaya v. Tamana, ILR 16 Born 281; Shankar v. Honma, ILR 2 Born 470; Murari v. Suba, ILR 6 Born 725; The decision in Syad Hashim v. Hussein Sha, ILR 13 Born 429 (433), however, allowed a suit even for a personal office to which no fees were attached.

6. Mamat Ram v. Babu Ram, ILR 15 Cal 159.

7. Tholapalla v. Venkata, ILR 19 Mad 62.

8. Ranuilingachi v. Ellayaperuma, AIR 1937 Mad 403.

9. Chunnu Dat v. Babu Nandan, ILR 30 All 527.

10. Krishnama v. Krishnasami, (1879) ILR 2 Mad 62 (PC).

11. Sinha Ramanuja v. Ranga Ramanuja, AIR 1961 SC 1720.

Code of Civil Procedure, 1908 Back

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