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Bellary Press Company, Limited by their Agent Mathura Dass Vs. K. Venkat Rao and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1911)21MLJ829
AppellantBellary Press Company, Limited by their Agent Mathura Dass
RespondentK. Venkat Rao and ors.
Cases ReferredCourt Paramananda Das v. Mahabir Dossji I.L.R.
Excerpt:
- - 486 and 612. it is argued that the order was bad in as much as no notice was given to the plaintiff as required by section 24. that section empowers the district court to make a transfer on the application of a party after notice to all, or of its own motion without such notice. 538 was bad. order xlvii, rule 1, like section 623 of the old code, authorises an application to review to the court which passed the decree or order......(3) of section 493 of the old code. it must be presumed that the change was intentional. the power to transfer under section 24 is no doubt very wide. but sub-clause (2) of clause (a) of sub-section (1) of section 24 authorises a transfer to a subordinate court competent to try or dispose of the same. we must, therefore, hold that the transfer of the interlocutory application no. 538 was bad. it is true that clause (3) of rule 2 of order xxxix is only an enabling provision conferring an authority on the court granting the injunction and does not preclude an application to the court to which a suit is transferred subsquent to the ad interim injunction for dealing with any disobedience of it. indeed the ad interim injunction would probably be enforceable under section 36 read with.....
Judgment:

1. This is an application under Section 115 of the Code of Civil Procedure to revise the order of transfer made by the District Judge of Bellamy in. O.S. No. 155 and 78 of 1910, and of Interlocutory Applications Nos. 486, 538 and 612 of 1910, on the file of the District Munsif of Bellary. We think there is no ground for interfering with the order of transfer as regards suits Nos. 155 and 78 and Applications. Nos. 486 and 612. It is argued that the order was bad in as much as no notice was given to the plaintiff as required by Section 24. That section empowers the District Court to make a transfer on the application of a party after notice to all, or of its own motion without such notice. The order in these cases was made on the application of the defendant. Notice to all parties should have been given by the District Judge before making the order. Not giving the notice we may, therefore, assume, was an irregularity. We should have been inclined to regard it also as a material irregularity justifying our interference under Section 115 but for the fact that the District Judge had power to make the transfer by his own motion without notice, and his attention was specially called to that provision and he was invited to make the order in the exercise of that power. The irregularity is a mere defect of form and we are not, therefore, prepared, to interfere. The petition, in so far as it is against the order of transfer of O.S. Nos. 155 and 78 of 1910 and Interlocutory Applications No. 486 and 612 of 1910, is dismissed. With reference, however, to the order transferring Interlocutory Application 538 of 1910, the matter stands on a different footing. That was an application to the District Munsif under Clause (3), Rule 2, of Order XXXIX, to punish the defendant for disobedience of the ad interim injunction granted by the District Munsif. Under that clause the court granting the injunction has power to attach the property of the person guilty of disobedience or to detain him in the civil prison. The language of this clause giving the power to the court granting the injunction is a modification of Clause (3) of Section 493 of the old Code. It must be presumed that the change was intentional. The power to transfer under Section 24 is no doubt very wide. But Sub-clause (2) of Clause (a) of Sub-section (1) of Section 24 authorises a transfer to a subordinate court competent to try or dispose of the same. We must, therefore, hold that the transfer of the Interlocutory Application No. 538 was bad. It is true that Clause (3) of Rule 2 of Order XXXIX is only an enabling provision conferring an authority on the court granting the injunction and does not preclude an application to the court to which a suit is transferred subsquent to the ad interim injunction for dealing with any disobedience of it. Indeed the ad interim injunction would probably be enforceable under Section 36 read with Rule 32 of Order XXI by the Bellary Subordinate Judge's Court to which the suit has been transferred. But that is a very different thing from the power conferred by Clause (3) of Rule 2 of Order XXXIX on the court granting the injunction. It was held under Section 257(a) of the old Code by this Court Paramananda Das v. Mahabir Dossji I.L.R. (1896) M. 378 that the only court which could sanction an agreement falling under that section was the court which passed the decree. It could hardly be contended that the District Court could transfer an application for sanction under that section to another court. Order XLVII, Rule 1, like Section 623 of the old Code, authorises an application to review to the court which passed the decree or order. It seems to us that such an application cannot be transferred by the District Court or the High Court to any other court. These are cases which appear to be analogous to the application under Clause (3) of Rule 2 of Order XXXIX. We must set aside the order of the District Judge transferring Interlocutory Application No. 538 of 1910 from the file of the District Munsif of Bellary. We make no order as to costs.


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