1. The only substantial objection raised in this second appeal by the appellant is that the Subordinate Judge who heard the appeal in the Court below had no jurisdiction.
2. The case was originally tried in the District Munsif's Court of Tinnevelly and the appeal was entered and came on for hearing before the District Judge and certain, documents were put in at the appeal. The District Judge thereupon remanded the suit under Section 56(5, Civil Procedure Code, to the District Munsif for findings upon fresh issues and ordered that fresh evidence might be taken and the findings returned. When the findings had been returned the District Judge transferred the appeal to the Subordinate Judge who, after hearing the parties, reversed the decree of the District Munsif and dismissed the plaintiffs suit.
3. It is contended that the District Judge had no power to transfer an appeal which had been part heard by the District Judge to the Subordinate judge under Section 13 of the Civil Courts Act (Act III of 1873) and that it is only when an appeal has been properly transferred under Section 13 of Act III of 1873 that a Subordinate Judge has any jurisdiction.
4. The only inherent jurisdiction that a Subordinate Judge has is in original suits under Section 12 of the Civil Courts Act (Act III ' of 1873), and he acquires jurisdiction under the last clause of Section 13 of that Act which enables a District Judge to transfer appeals to him, and unless that section is legally complied with he has no jurisdiction to hear or determine any appeal. The question, therefore is whether when a case has been commenced and part heard by the District Judge he can legally transfer the further hearing of it to a Subordinate Judge.
5. It has been held under Section 6 of Act VIII of 1859, which is an analogous enactment, that a part-heard case pending before a District Judge cannot be transferred--see Moulvie Abdool Hye v. J. Macrae (11874) 23 W.R. 1 and Dumree Sahoo v. Jugdharee (1870) 13 W.R. 398
6. In Second Appeal No. 863 of 1898 Kotaiyya v. Lakshmaiyya 9 M.L.J.R. 297 it was held by this Court that under Section 13 of the Civil Courts Act a District Judge, who had himself partheard an appeal, could not thereafter transfer the appeal to the Subordinate Judge and the judgment of the Subardinate Judge was set aside.
7. On behalf of the respondents it was argued that, at the most, the transfer of the appeal after it had been part-heard by the District Judge was a mere irregularity and did not affect the jurisdiction of the Subordinate judge and I.L. R., 7 A., 342were cited.
8. Bandhu Naik v. Lakhi Kuar (1885) L.R., 7 A. was a case under Section 25, Civil Procedure Code, which is a somewhat analogous section. There the case had been part-heard by the Subordinate Judge and was then transferred by the District, Judge to his own file. The Court held that, though he had power to transfer and try it, inasmuch as he had not taken the evidence he had not tried the case, and set aside his decree. This case, therefore, does not assist the respondents' contention, for it only decides at the most that a District Judge has power to transfer and' try, under Section 25., Civil Procedure Code, a case which was pending in a Court subordinate to itself even though it might have been part-heard. But it also decided that it could not act upon what had been already done in the Subordinate Court.
9. Sankumani v. Ikoran I.L.R(1889) . . M. 211 was also a case under Section 25 of the Civil Procedure Code. This case had been transferred without notice having been given, as the section directed, to the defendants. The defendants did not? however, object to the want of notice but appeared and submitted to the jurisdiction and even appealed without taking any objection to the jurisdiction. The Court held that as the Court had inherent jurisdiction and as notice was intended for the benefit of the parties, they could waive it and so cure any defect in the order conferring jurisdiction. They acted on the principles laid down by the Privy' Council in Led-gard v. Bull I.L.R(1886) . 9 A., 191 and in Minakshi Naidu v. Subramania Sastri I.L.R.(1887) 11 M., 26 that where a Court has no inherent jurisdiction waiver will not confer jurisdiction, but in cases where the Court has inherent jurisdiction but there has been some irregularity in the initial proceedings upon which it exercised jurisdiction, the defect is one which can be cured by waiver.
10. It has already been pointed out that in appeals a Subordinate Judge has no inherent jurisdiction, so that any waiver by the parties would not confer jurisdiction upon him if the transfer was not legal.
11. We are of opinion that Section 13 of the Civil Courts Act does not authorise a District Judge to transfer to a Subordinate Judge an appeal which is partheard and pending before the District Judge and it would be contrary to public policy to put such an interpretation upon the section and that the fact that the appellants did not object to the jurisdiction does not confer Jurisdiction upon the Subordinate Judge.
12. We must, therefore, allow the appeal and reverse the decree of the Subordinate Judge and remand the case to the District Judge for hearing and disposal according to law. Costs will abide the event.