Skip to content


Sardhari Sah Vs. Hukum Chand Sah - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtKolkata
Decided On
Judge
Reported in(1914)ILR41Cal876
AppellantSardhari Sah
RespondentHukum Chand Sah
Cases ReferredTej Earn v. Harsukh
Excerpt:
sonthal parganas - high court, jurisdiction of--suits exceeding rs. 1,000 in value--sonthal parganas civil rules 1905, rule 29--sonthal parganas act (xxxvii of 1855) sections 1, clause (2), and 2--sonthal parganas settlement regulations (iii of 1872) section 27--sonthal parganas justice regulation (v of 1893) section 5--civil procedure code (act v of 1908) section 115--the charter act (24 & 25 vic. c. 104) section 15. - .....decree for sale on a mortgage and the property was advertised for sale on the 18th april 1912. the opposite party, surajmal marwari, claims to be the landlord of the judgment-debtor and he objected to the description of the property as being the mokarrari maurusi property of the judgment-debtor, inasmuch as he contends that the judgment-debtor is a mere tenant-at-will. various references were made to the landlords and the executive authorities and ultimately the petitioner came up to this court and obtained a rule on the opposite party to show cause why the property should not be sold. the order ultimately passed on that rule ran as follows:2. after some discussion the decree-holder, petitioner has agreed that the objector zemindar shall be discharged from the record and that the'.....
Judgment:

Coxe, J.

1. The petitioner in this case obtained a decree for sale on a mortgage and the property was advertised for sale on the 18th April 1912. The opposite party, Surajmal Marwari, claims to be the landlord of the judgment-debtor and he objected to the description of the property as being the mokarrari maurusi property of the judgment-debtor, inasmuch as he contends that the judgment-debtor is a mere tenant-at-will. Various references were made to the landlords and the executive authorities and ultimately the petitioner came up to this Court and obtained a Rule on the opposite party to show cause why the property should not be sold. The order ultimately passed on that Rule ran as follows:

2. After some discussion the decree-holder, petitioner has agreed that the objector zemindar shall be discharged from the record and that the' property shall be put up for sale as described in the mortgage-decree.

3. Let the opposite party, Surajmal Marwari, be discharged from the record and the property sold as described in the mortgage-decree.

4. The opposite party is entitled to his costs throughout.

5. The property will of course be sold subject to the objection of the landlord, Surajmal Marwari, that it is not maurusi mokarrari and that it is a tenancy at will.

6. The case then went back to the Subordinate Judge. Thereupon, Surajmal applied to the executive authorities for a further enquiry. The Deputy Commissioner called for a report from the Subdivisional Officer, who happens to be also the Subordinate Judge. That officer accordingly, as Subordinate Judge, has adjourned the sale proceedings while he makes an enquiry as Subdivisional Officer. The petitioner accordingly came again to this Court and obtained this Rule on the opposite party to show cause why the mortgaged property should not be sold without further delay.

7. So far as the opposite party is concerned the Rule presents no difficulty. The former order was passed with his consent and he cannot be heard to say that the Subordinate Judge must again decide his objection before proceeding with the sale. His contention that he did not agree to the order and that it is not binding on him is childish.

8. But as I had grave doubts whether the matter was within our powers, and as the Deputy Commissioner, in submitting the records, reported that application had been made to Government to be represented at the hearing of the Rule, notice was given to the Government and we have heard the Deputy Legal Remembrancer against the Rule.

9. On consideration I do not think that we are debarred by anything in the local Acts and Regulations of the Sonthal Parganas from revising the Subordinate Judge's proceedings. The learned Deputy Legal Remembrancer has relied on Rule 29 of the rules for the guidance of Civil Courts in the Sonthal Parganas issued on the 18th August, 1905, which reproduced in a modified form earlier rules on the subject. This rule prescribes that the sale of tenants' rights shall be subject to the consent of the Deputy Commissioner, the landlord also being given an opportunity to object. These rules are issued 'with reference to the provisions of Section 1, Clause (2), of the Sonthal Parganas Act, 1855, and Section 27 of the Sonthal Parganas Justice Regulation, 1893, for the guidance of the officers appointed under Section 2 of the said Act to administer Civil Justice.' Section 27 of the Regulation need not detain us as it merely enacts that directions issued under the Act must be consistent with the Regulation. Under the Act officers are made subject to the directions of the Lieutenant-Governor, and the administration of civil justice among other things is vested in those officers. It may, therefore, seem to follow that officers administering civil justice are subject to the directions of the Lieutenant-Governor. Then, however, comes a proviso that all civil suits over Rs. 1,000 in value shall be tried and determined according to the general law in the same manner as if the Act had not been passed. Officers, therefore, trying such suits are independent of the Lieutenant-Governor's direction and have to try them as if the Act, from which alone the directions derive their validity, had not been passed. Can it, therefore, be said that this state of things lasts only up to decree and has no application to proceedings in execution, which are proceedings in suits? I think it clear that this was not the intention of the Legislature. Turning to the Sonthal Parganas Justice Regulation, 1893, I find the Civil Courts divided into (i) Courts established under the Courts Act, and (ii) Courts of officers appointed by the Lieutenant-Governor under Section 2 of the Act. This surely justifies the inference that the Legislature not only did not regard Subordinate Judges as subject to directions under the Act of 1855 but did not even regard them as officers appointed by the Lieutenant-Governor under that Act. That being so, I think it is impossible to hold that such Courts are subject to the directions of the Lieutenant-Governor under the Act of 1885. This seems to be in accordance with the decision in Dungaram Marwary v. Rajkishore Deo (1890) I.L.R. 18 Calc. 133.

10. Of course, we cannot interfere with an order of the Deputy Commissioner directing an enquiry, or with an enquiry by the Subdivisional Officer. But the Subordinate Judge is subject to our jurisdiction and an order by him adjourning a sale may be examined by us.

11. Reference has also been made to Section 27 of the Sonthal Parganas Settlement Regulation. It is contended that this section binds all Courts whether trying suits over Rs. 1,000 or not. I see no reason to doubt that this is so, but the section has no application to the present case.

12. Assuming that it applies to execution sales at all an assumption with which the words 'every other contract or agreement,' seem somewhat inconsistent, the section only applies to transfers by raiyats, and the learned pleader for the opposite party admits that the judgment debtor is not a raiyat.

13. I do not think that an order of this nature comes within Section 115 of the Code. No case has as yet been decided. Bat we have general power of superintendence over the subordinate Courts under the Charter, and I think that this is a case in which that power might fitly be exercised. Personally, I should be very 1oth to hold that we can alter wrong judicial orders under that power, and incline to the view stated in Tej Earn v. Harsukh (1875) I.L.R. 1 All. 101. But here, though I do not for a moment suggest that the Subordinate Judge desires to be anything but entirely loyal to the orders of this Court, the practical effect of his action is that the orders of this Court, passed last July with the consent of the party, who is now endeavouring to obstruct their fulfillment, are still being disregarded while the gentleman who fills the office of Subordinate Judge, makes in another capacity an enquiry which, from the point of view of a Subordinate Judge, must be deemed wholly irrelevant and unnecessary. That is an evil which this Court, in my opinion, is entitled to remedy in the exercise of its power of superintendence, and we are entitled to direct that, whether the Subdivisional Officer holds an enquiry or not, the Subordinate Judge shall proceed with the sale at once.

14. The Rule is accordingly made absolute. The petitioner is entitled to his costs from the opposite party.

D. Chatterjee, J.

15. As this case arises out of a suit in which the matter in dispute exceeds one thousand rupees, it is governed by the general laws and regulations in force in the province and our general power of superintendence under the Charter are in no way restricted by the Sonthal Parganas Regulations and Rules. I therefore agree in making the Rule absolute.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //