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Judgment
Pakenham Walsh, J.—In my opinion the Court of first instance is clearly right in its view of the law. An interim order of attachment of 2nd
defendant''s Immovable property before judgment was passed on 15th January, 1926 and the attachment was made absolute when the decree
was passed on 30th March, 1926. Meanwhile, Act I of 1926 had come into force on 24th February, 1926. This, was an explanatory Act passed
with reference to the conflicting views which had been taken as to the power of a Small Cause Court to attach Immovable properties before
judgment. By that Act, to Order 38, Rule 12 of the CPC was added another Rule 13 declaring that Small Cause Court had no such powers.
There is no dispute, therefore, that when the attachment order in this case was made absolute on 30th March, 1926, it was an order beyond the
powers of the Court to pass.
Act I of 1926 being a declaratory Act, the usual presumption that an Act is not retrospective does not apply vide Attorney-General v. Dusdley
Craies on Statute Law, p. 336, 3rd Ed. vide, also Mohammadi Bibi v. Kashi Upadhya 96 Ind.Cas. 775. Moreover, even otherwise a right to
apply for attachment is, I agree with the learned District Munsif, a processual right, and, as he puts it, a privilege whose exercise depends entirely
on the discretion of the Court.
The learned Appellate Judge has, in my opinion, taken a wrong view in saying that Act I of 1926 took away any jurisdiction which the Small
Cause Court had before. There is absolutely nothing repealed by the Act. As a new rule had to be added to resolve the disputed point, it had of
course to be called an amending Act as well as an explanatory Act. I disagree with the views expressed in paragraph 8 of his judgment that ""the
power possessed by a Court to order attachment before judgment was expressly taken away and repealed"" and that ""Act I of 1926 is a repealing
Act as well as an amending Act.
The Madras High Court had no doubt held in Kothandarama Chettiar v. Annamalai Pillai ILR (1924) M. 488 : 1924 48 M.L.J. 406 that a
Small Cause Court had such powers. There had been conflicting decisions in the Calcutta High Court and finally it was held by a Full Bench there
that while a Small Cause Court could pass the order for attachment, it could not execute it. To declare the law on the point, Act I of 1926 was
passed. Its effect is that the view taken in Kothandarama Chettiar v. Annamalai Pillai ILR (1924) M. 488 : 1924 48 M.L.J. 406 was bad in law.
To argue that such a view created rights is not permissible. A Court does not create rights by such a decision but merely states its view as to the
rights possessed by persons or Courts. Vddavalli Narasiah v. Mangamma ILR (1903) M. 538 quoted for respondent has no application to a case
like this and in fact is against him in so far as it lays down that Acts relating to procedure are retrospective.
The petition must be allowed with costs. The order of the Appellate Court is set aside and that of the Original Court restored.