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Thakur Prasad and ors. Vs. Babu Narendra Bahadur Singh - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in15Ind.Cas.862
AppellantThakur Prasad and ors.
RespondentBabu Narendra Bahadur Singh
Cases ReferredKumarasami Reddiar v. Subbaraya Beddiar
Excerpt:
civil procedure code (act v of 1908), order xli, rules 25, 26 - remission of issues to the lower court by court of appeal--transfer of case by the appellate court to another court of appeal before findings were returned--jurisdiction. - .....dismissed the suit on the 30th of august, 1904. an appeal was preferred by the defendants to the district judge of gorakhpur. it was heard by him and issues were re-ferrad by him to the court below on the 13th of march 1907. the munsif recorded findings on the issues on the 21st of march 1907. the learned judge considered the findings to be insufficient and referred back the issues on the 4th of june 1907. meanwhile, some of the parties died. the munsif thereupon sent back the case to the district judge in order that the legal representatives of the deceased might be brought on the record. on receipt of the record and before findings upon the issues referred to the court below had been returned, the learned judge, by his order of the 16th of august 1907, transferred the case to the.....
Judgment:

Banerji, J.

1. I regret that I am obliged to set aside the decree of the Court below, and remand the case as the suit was brought so far back as the 29 th of February 1904. It was one for possession of land on the ground that it belonged to the plaintiffs and appertained to their village. The Court of first instance, the Munsif of Bansgaon, dismissed the suit on the 30th of August, 1904. An appeal was preferred by the defendants to the District Judge of Gorakhpur. It was heard by him and issues were re-ferrad by him to the Court below on the 13th of March 1907. The Munsif recorded findings on the issues on the 21st of March 1907. The learned Judge considered the findings to be insufficient and referred back the issues on the 4th of June 1907. Meanwhile, some of the parties died. The Munsif thereupon sent back the case to the District Judge in order that the legal representatives of the deceased might be brought on the record. On receipt of the record and before findings upon the issues referred to the Court below had been returned, the learned Judge, by his order of the 16th of August 1907, transferred the case to the Court of the Subordinate Judge. That Court, after considering the finding of the Court of first instance on the issues referred by the District Judge, decided the appeal on the 14th of August 1911.

2. From the decision of the Subordinate Judge, this appeal has been preferred and the first contention raised is that the order made by the District Judge for the transfer of the case which had been heard by him in part, was improper and without jurisdiction and that the decision of the Subordinate Judge was consequently without jurisdiction also and must be set aside. This contention is supported by the ruling of this Court in Udit Narain Singh v. Jhanda 15 A. 315. That was a case very similar to the present. In that case, as in this, the District Judge had made an order referring issues under Section 56 3 of the Code of Civil Procedure, 1882. Before the return was made by the Court of first instance, the District Judge transferred the case to the Court of the Subordinate Judge. It was held that the Appellate Court was not competent to transfer the appeal for disposal by another Court and was bound to decide the case itself. Reference was made to the last paragraph of Section 566 and the first paragraph to Section 567 of the old Code, which have been re-enacted in the new Code of Civil Procedure in Order XLI, Rules 25 and 26. I am bound to follow this ruling which is also consonant with the decision of the Madras High Court in Kumarasami Reddiar v. Subbaraya Beddiar 23 M. 314. I accordingly set aside the order of transfer to the Subordinate Judge and the decree of the Subordinate Judge on appeal and direct the District Judge to restore the appeal to the file of pending appeals in his own Court and to dispose of it according to law. Costs here and heretofore will abide theresult. Costs in this Court will include fees on the higher scale.


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