Basil Scott, Kt., C.J.
1. The applicant obtained this rule calling on the opponent to show cause why an order of the Assistant Judge of Poona should not be set aside as being without jurisdiction.
2. The material facts are that a suit filed by the applicant in the Court of the First Class Subordinate Judge of Poona against the opponent claiming Rs. 18,197-13-0 had been heard by that Judge for some days when the opponent filed an application in the Court of the District Judge for transfer of the suit to another Court.
3. The District Judge transferred the application to the Assistant. Judge for disposal.
4. The Assistant Judge heard the application and ordered that the suit be transferred to the District Court Poona for trial.
5. It is objected that this order was without jurisdiction as the application was under Section 24 of the Code (Act V of 1908) which gives power to the High Court or District Court (b) to withdraw any suit pending in any Court subordinate to it and (i) try or dispose of the same or (ii) transfer the same for trial or disposal to any Court subordinate to it, whereas the Assistant Judge has ordered the withdrawal of the suit from a Subordinate Court and transferred it for trial to a Court superior to him. The answer of the opponent is that the order is legal as the Assistant Judge is one of the Judges of the District Court and his order is in effect the order of the District Court. In order to judge of the position of the Assistant Judge we must turn to the Bombay Civil Courts' Act XIV of 1869, Part V, which is concerned with the creation and functions of Assistant Judges. It is to be observed that the limit of the Assistant Judge's jurisdiction for the purpose of hearing suits is Rs. 10,000 and that in the case of suits and applications when the value of the subject-matter does not exceed Rs. 5,000 an appeal in appealable cases lies to the District Judge. The Assistant Judge is therefore not a Judge of co-ordinate jurisdiction with the District Judge. He is therefore not a judge of the District Court and the order complained of is not made by the District Court which alone had jurisdiction.
6. The same conclusion follows from a consideration of the words of Section 24 of the Code. The District Court may withdraw any suit and try and dispose of it. Here the suit withdrawn was for a sum exceeding the jurisdiction of the Assistant Judge and he therefore could not try and dispose of it. He therefore is not a Judge of a District Court as contemplated by the section, which must be a Court of unlimited pecuniary jurisdiction.
7. Again Section 24 provides that for the purposes of the section the Courts of Assistant Judges shall be deemed to be subordinate to District Courts but the opponent's argument is based on the contention that for the purposes of the section the Court of the Assistant Judge is part of the District Court.
8. The rule must be made absolute setting aside the order with costs.
N.G. Chandavarkar, J.
9. I do not think that an Assistant Judge's Court can be held to be a District Court or even part and parcel of it for the purposes of all suits and miscellaneous applications. An Assistant Judge's decree passed in suits is generally appealable to the District Court; probate applications and cases arsing under the Land Acquisition Act heard and determined by him have been held by this Court to be similarly appealable. Therefore, whether the Assistant Judge's Court is a District Court or not must depend upon the law under which that Court exercises jurisdiction in any given case. In the matter of the present application, the jurisdiction exercised was under Section 24 of the Code of Civil Procedure. Now, it is true that in the present case under the Bombay Civil Courts Act, Section 19, the District Court 'referred' the application for transfer made to it to the Assistant Judge's Court for disposal; but a power to decide a case referred to it by a higher Court does not necessarily make the Court to whom it is referred the equal of the former unless the provisions of the law under which the case has to be decided confers jurisdiction on the lower Court. Section 19 of the Bombay Civil Courts Act is a merely enabling section, giving power of reference to the District Court in respect of suits and miscellaneous applications but Section 24 prescribes the conditions of the jurisdiction of the District Court. These are restrictive conditions and those of them which apply here require that the Court exercising jurisdiction must be one which is competent, according to law, to try or dispose of the suit withdrawn from a lower Court. Here the Assistant Judge's Court, it is conceded, was not so competent.
10. The rule must be made absolute by setting aside the order of the Assistant Judge and directing the District Court to retake the application on its file and dispose of it according to law. Rule absolute with costs.