Full Judgment
Richard Garth, C.J.
1. If this were really a suit for a declaratory decree only, I should hold that the Small Cause Court had no jurisdiction to entertain it.
2. The case of Ram Dhun Biswas v. Kefal Biswas 10 W.R. 141; s.c. 1 B.L.R. S.N. 10 decided by Sir Barnes Peacock and Mr. Justice Mitter, J., is perfectly good law at the present time. It has never, so far as I am aware, been seriously questioned; and the case of Nathu Ganesh v. Kalidas Umed I.L.R. 2 Bom. 365 is plainly distinguishable from it. Indeed, Sir Michael Westropp, in page 367, very carefully recognizes the distinction. A man whose goods have been taken and sold in execution has a right to bring a suit in the Small Cause Court for the recovery of those goods against any one into whose hands they have come. But a judgment-creditor cannot sue in the Small Cause Court to have it declared that goods are the property of the judgment-debtor. In the first case, the plaintiff sues to recover his own property; in the other, he asks for a declaration, that the property belongs to a third person.
3. Sections 280 and 281 of the Civil Procedure Code relate only to execution-proceedings, and have no application to a substantive suit, which is brought to establish a mere right.
4. But in this case, although the plaintiff asks in form for a declaration of his right, he is really suing, not for a declaratory decree, but to recover possession of his cow and calf, and Rs. 28-10 in money as the value of the milk; and I think that the Small Cause Court should deal with the case upon that footing.
5. This disposes of the first question which is raised in the reference.
6. As regards the second question, it is unfortunate that a very simple matter should have been complicated by allowing Musst. Luteefunnessa to intervene as a claimant. We think that the Court would have acted more wisely if, in the exercise of its discretion, it had left Luteefunnessa to bring a separate suit against the plaintiff to establish her title to the property; but as she has been allowed to come in, there is nothing to prevent the Small Cause Court from determining whether she has any right to the property or any other questions of title which may arise in such a suit.
7. Any decision which the Court may arrive at with regard to the respective rights of the plaintiff and the intervenor to the property in question, would not operate as a res judicata or otherwise affect the rights of the parties with respect to any immoveable property, which may depend upon the same title.
8. If the Court decides in favour of Luteefunnessa, as well as of the original plaintiff, the decree will be, that those two parties do recover possession of the cow and calf in whatever shares the Judge considers them entitled, and any decree with regard to the money will be decided upon the same principle; but in no case will it be either necessary or proper for the Judge to make a declaratory decree (properly so called) as to the relative rights of the parties.