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Bilash Chunder Roy Vs. Dakhina Churn Chattopadhya - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1891)ILR18Cal526
AppellantBilash Chunder Roy
RespondentDakhina Churn Chattopadhya
Cases ReferredPrem Chand Dey v. Mokhoda Debi I.L.R.
Excerpt:
jurisdiction - act vi of 1871, section 18--safe in execution--local limits of jurisdiction under act vi of 1871--practice--form of action. - .....september 1886 by the second subordinate judge is, or at any rate was then, situate within the local jurisdiction of the first subordinate judge as defined by the district judge.5. a question was raised before us in the course of argument whether, supposing that the order of the district judge of the 20th january 1883 applied to the second subordinate judge, who then held office in dacca, it could apply to baboo mutty lall sircar, who was subsequently, in the year 1884, appointed as a subordinate judge of dacca, and who would have, as such subordinate judge, jurisdiction over the whole of the district. but on looking at the correspondence which took place in the year 1884 between the then district judge and the high court on the subject, after baboo mutty lall sircar's appointment,.....
Judgment:

W. Comer Petheram, Kt., C.J.

1. I think that the Subordinate Judge was right to set aside the sale, and that the appeal must be dismissed.

2. The point is concluded by the decisions in the cases of Obhoy Churn Coondoo v. Golam Ali I.L.R. 7 Cal. 410 and Prem Chand Dey v. Mokhoda Debt I.L.R. 17 Cal. 699.

Ghose, J.

3. The question raised in this appeal is whether a sale held by the Second Subordinate Judge of Dacca (Baboo Mutty Lall Sircar) on the 15th September 1886, in execution of a decree passed by the First Subordinate Judge of the same district, was a bad sale for want of jurisdiction.

4. It appears that, in exercise of the powers vested in him by Section 18, Act VI of 1871, the District Judge of Dacca, on the 20th January 1883, defined the local limits of the jurisdiction of the First and Second Subordinate Judges of that place. And the Court below in this case finds--and there can be no doubt as to the correctness of that finding--that the property which was sold on the 15th September 1886 by the Second Subordinate Judge is, or at any rate was then, situate within the local jurisdiction of the First Subordinate Judge as defined by the District Judge.

5. A question was raised before us in the course of argument whether, supposing that the order of the District Judge of the 20th January 1883 applied to the Second Subordinate Judge, who then held office in Dacca, it could apply to Baboo Mutty Lall Sircar, who was subsequently, in the year 1884, appointed as a Subordinate Judge of Dacca, and who would have, as such Subordinate Judge, jurisdiction over the whole of the district. But on looking at the correspondence which took place in the year 1884 between the then District Judge and the High Court on the subject, after Baboo Mutty Lall Sircar's appointment, and which correspondence we thought it necessary to send for, as also the letter of the District Judge, dated the 14th May current, it seems to be perfectly clear that Baboo Mutty Lall Sircar held the position of the Second Subordinate Judge, and as such exercised jurisdiction within the local limits assigned to the Second Subordinate Judge by the order of the District Judge of the 20th January 1883.

6. That the two Subordinate Judges of Dacca exercised jurisdiction over different local limits appears also from the fact that the decree-holder in this case, before he caused the sale of the property in dispute, petitioned to the First Subordinate Judge for a transfer of his decree to the Court of the Second Subordinate Judge, under Sections 223 and 224 of the Code of Civil Procedure, upon the ground that the judgment-debtor had no property 'within the jurisdiction of this Court,' i.e., the Court of the First Subordinate Judge. And having thus got the decree transferred, he applied to the Second Subordinate Judge, Baboo Mutty Lall Sircar, for sale of the property in question.

7. It seems, therefore, that the Second Subordinate Judge of Dacca had no local jurisdiction over this property, as laid down by the District Judge of Dacca in accordance with Section 18, Act VI of 1871.

8. But then it has been contended before us, upon the authority of the decision of the Judicial Committee in the case of Ram Chunder Bysack v. Dinonath Surma Sircar 5 C.L.R. 470 and that of a Divisional Bench of this Court (Louis JACKSON and MCDONNELL, JJ.) in the same case (unreported), that the division of jurisdiction effected by the order of the District Judge was made for administrative purposes only, and that it could not go beyond taking cognizance of original suits; and that, therefore, Baboo Mutty Lall Sircar having been appointed a Subordinate Judge of Dacca, could not be said to have no jurisdiction to sell the property in question.

9. The case of Dinonath Sircar was, as has been rightly observed by the Court below, a very different case from that which we have before us. There, the property sold was situate partly within the local limits of the Principal Sudder Ameen (now styled Subordinate Judge) at Dacca, and partly within that of the Principal Sudder Ameen at Furreedpore, as defined by an order of the District Judge under Section 3, Act IX of 1844 (both Dacca and Furreedpore being at the time within the jurisdiction of one and the same District Judge). And therefore each of these officers had the power to sell the property. The plaintiff claimed under a sale held by the Principal Sudder Ameen of Furreedpore in execution of a decree passed by that officer; but it was contended by the defendant, who had purchased the same property under a sale held by the Principal Sudder Ameen of Dacca, that the Subordinate Judge of Furreedpore had no jurisdiction to sell the property, and that the purchase under that sale was a benami purchase for the judgment-debtor. The High Court held, in the first place, that the said purchase was, not benami, and they then dealt with the effect of Section 3, Act X of 1844, which was the law applicable to that case, as also of Section 18, Act VI of 1871, as regards the jurisdiction of two or more Principal Sudder Ameens appointed to any place. In dealing with this matter they expressed a view which no doubt supports the contention of the appellant in this case. But it will be observed that the judgment of the Judicial Committee in appeal against that decision turned upon the first-mentioned point, viz., the point of benami. They held that the purchase under which the plaintiff claimed was a benami purchase for the judgment-debtor, and therefore he was not entitled to recover. They then observed as follows:

It is not necessary, therefore, to decide whether the Principal Sudder Ameen had jurisdiction to issue the execution under which the plaintiff's vendor purchased the estate, but their Lordships wish to be distinctly understood that they throw no doubt whatever upon the decision of the High Court by which it was held that the Principal Sudder Ameen had jurisdiction to issue the execution.

10. I do not understand the Judicial Committee affirming all the remarks made by Jackson, J., as regards the effect of Section 3, Act X of 1844, as also that of Section 18, Act VI of 1871. As already observed, the law which the High Court had then to deal with was the former Act and not the latter Act, the language whereof, I may here observe, is somewhat different.

11. I do not think we are bound by any observations which were then made as regards the provisions of Section 18, Act VI of 1871. On the other hand, there is a more recent decision by another Divisional Bench of this Court (Pontifex And Field, JJ.) in the case of Obhooy Churn Coondoo v. Golam Ali I.L.R. 7 Cal. 410 which is a distinct authority in support of the view taken by the Court below, that the Second Subordinate Judge of Dacca had no jurisdiction to sell this property. The question raised in that case was no doubt as to the jurisdiction of two Munsifs; but I think that the same reasoning as to two Munsifs holding office in the same munsif (as it was in that case) applies to two Subordinate Judges in the same district, whose territorial jurisdiction has been defined under Section 18, Act VI of 1871. That section runs as follows:

The Local Government shall fix, and may from time to time vary, the local limits of the jurisdiction of any Civil Court under this Act: Provided that where more than one Subordinate Judge is appointed to any district, and where more than one Munsif is appointed to any munsifi, the Judge of the District Court may assign to each such Subordinate Judge or Munsif the local limits of his particular jurisdiction within such district or munsifi, as the case may be.

The present local limits of the jurisdiction of every Civil Court (other than the High Court) shall be deemed to be fixed under this Act.

12. And it was held in Obhoy Churn Coondoo v. Golam Ali I.L.R. 7 Cal. 410 that when a District Judge under Section 18 assigns local limits to Munsifs, the jurisdiction of each Munsif is confined to the particular limits assigned to him; that there is nothing in Section 18 to limit its operation to the institution of regular suits, and that a Munsif has no jurisdiction to attach or sell property within the jurisdiction of another Munsif, as defined by the District Judge.

13. This construction of Section 18, Act VI of 1871, was apparently accepted as law until the year 1887, when the Legislature thought it necessary to alter that section in material respects (see Act XII of 1887, Section 13).

14. I think we ought to follow the case of Obhoy Churn Coondoo v. Golam Ali I.L.R., 7 Cal., 410 and to hold that when the District Judge, under the authority vested in him by Section 18, Act VI of 1871, assigns to a Subordinate Judge the local limits of his particular jurisdiction, that officer exercises jurisdiction within and not outside (wholly) such local limits.

15. In this connection we may refer to some of the observations that were made by a Full Bench of this Court in the case of Prem Chand Dey v. Mokhoda Debi I.L.R. 17 Cal. 699 (703) and they were as follows: 'By Section 16 of the Code of Civil Procedure, suits for the recovery of immoveable property, or for the determination of any other right or interest in immoveable property, must be instituted in the Court within the local limits of whose jurisdiction the property is situate. This shows that the object of the Code is to limit the territorial jurisdiction of the Courts in regard to the property that they are entitled to deal with. 'And later on--' So far as the Procedure Code is concerned, execution of a decree is only a continuation of the suit, and there appears no legitimate reason why a Court in the latter stage of the case should have greater powers than it possessed in its institution. But however that may be, a comparison of Section 223 with the last paragraph of Section 649 seems to us to indicate that territorial jurisdiction is a condition precedent to a Court executing a decree.'

16. In this case, as already mentioned, the decree was passed by the First Subordinate Judge, and the property which the decree-holder caused to be sold was situate within the jurisdiction of that Court, as assigned to it by the District Judge; and it follows that the First Subordinate Judge, and not the Second Subordinate Judge, was authorized to execute the decree and sell the property in question. The transfer of the decree from the Court of the First Subordinate Judge to that of the Second Subordinate Judge was evidently obtained by a misrepresentation of facts, and this transfer would not give to the Second Subordinate Judge a jurisdiction which he did not otherwise possess.

17. Upon these grounds, I think that the Court below was right in holding that the sale hold by the Second Subordinate Judge was void, and in decreeing the suit upon that ground, without going into the question of fraud in the matter of the sale raised by the plaintiff.

18. I may here observe that the proper form of action in such suits is not that the sale be set aside, but to have it declared that the sale is void and ineffectual, so as to pass any title to the auction-purchaser--and that is what the plaintiff in this case substantially asked for, although the prayer was also that the sale be set aside. The decree of the Subordinate Judge, however, is that the suit be decreed and the sale be set aside. That, I do not think, is the proper decree to make; but, as no objection has been raised before us on this score, it is not necessary to say anything more on the subject, for the decrees is substantially right.

19. The appeal will be dismissed with costs.


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