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Darbari Panjara Vs. Bhoti Roy - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported inAIR1914Cal452,(1914)ILR41Cal915
AppellantDarbari Panjara
RespondentBhoti Roy
Cases ReferredGolam Najaf Miah v. Panchanan Gupta
Excerpt:
jurisdiction - execution of decree--ejectment--indian high courts act, 1861 (24 & 25 vict. c. 104) section 15--bengal, assam civil courts act, (xii of 188 7) section 21--sonthal parganas civil courts statutory rules, para. 29--sonthal parganas act, (xxxvii of 1885), section 1 clause (2), 2--sonthal parganas settlement regulation (iii of 1872)--sonthal parganas rent regulation (ii of 1886) sections 25--sonthal parganas justice regulation (v of 1893) sections 7, 9, 12, 14, 15, 27. - .....be evicted from the entire holding, and with this recommendation forwarded the record to the deputy commissioner of or orders. on the 17th february, 1911, the deputy commissioner sanctioned eviction from the entire holding. the records were then returned to the sub-divisional officer who proceeded to eject the judgment-debtors and called upon the sub-deputy collector to arrange for re-settlement of the lands. no tenant, however, came forward to take settlement upon payment of the arrears due. the judgment-debtors also expressed their inability to pay the arrears. the sub-divisional officer thereupon ordered that the decree holder might keep possession for one year after which the lands should be returned to the judgment-debtors. subsequently one beni roy offered to take settlement,.....
Judgment:

Mookerjee and Beachcroft, JJ.

1. This Rule raises a question of first impression as to the true scope of Section 15 of the Indian High Courts Act, 1861 The solution of the question raised is by no means free from difficulty, which has been enhanced by the circumstance that the petitioners appeared in person in support of the application. But we have received considerable assistance from Babu Surendra Nath Ghosal who acted as amicus curice, and not only placed before us a full and clear statement of the facts of the case but also drew our attention to the legislative provisions applicable to the matter.

2. The facts, so far as it is necessary to state them for the elucidation of the question of law involved, may be briefly narrated. The petitioners were tenants under one Bhoti Roy in Rohini within the Sonthal Parganas. On the first April 1910, the landlord obtained a decree for Rs. 82-8 -which was the arrear of rent due for the year 1315 and the first-three quarters of the year 1316. This decree was made by the Sub-Deputy Collector of Deoghar. On the 16th January 1911 the decree-holder applied to the Sub-Deputy Collector for execution' by ejectment, on the allegation that, the judgment-debtors had no moveable property and previous applications to realise the judgment-debt by attachment and sale of moveables had failed. The Sub-Deputy Collector held that under these circumstances the judgment-debtors might be ejected from a portion of the holding and submitted the record to the Sub-divisional Officer for orders on the 16th January 1911. On the 4th February 1911, the Sub-divisional Officer recorded his opinion that the tenants should be evicted from the entire holding, and with this recommendation forwarded the record to the Deputy Commissioner of or orders. On the 17th February, 1911, the Deputy Commissioner sanctioned eviction from the entire holding. The records were then returned to the Sub-divisional Officer who proceeded to eject the judgment-debtors and called upon the Sub-Deputy Collector to arrange for re-settlement of the lands. No tenant, however, came forward to take settlement upon payment of the arrears due. The judgment-debtors also expressed their inability to pay the arrears. The Sub-divisional Officer thereupon ordered that the decree holder might keep possession for one year after which the lands should be returned to the judgment-debtors. Subsequently one Beni Roy offered to take settlement, and his application was granted. The judgment-debtors thereupon objected, substantially on the ground thai this Beni Roy was no other than he decree-holder himself, but their objection was overruled both by the Sub-divisional Officer and the Deputy Commissioner, although they offered to pay-up the judgment-debt in full. We are now invited to set aside these proceedings for eviction as irregular and without jurisdiction. There is little room for controversy that the proceedings have been throughout irregular.

3. Under paragraph. 29 of the Statutory Rules for the guidance of Civil Courts in the Sonthal Parganas, issued by the Local Government on the 18th. August 1905 under Section 27 of Regulation V of 1893, read with Section 1, Clause (2), of Act XXXVII of 1855, a tenant whose right is not saleable may, in execution of a decree for rent, be, with the Deputy Commissioner's consent, evicted, and the land may then be re-settled. It is plain that the eviction in execution can be effected only by the Court executing the decree. This view is not affected by Section 25 of Regulation II of 1886, which provides for the exemption of raiyats from liability to ejectment except by order of the Deputy Commissioner. In the case before us, the question of ejectment of the tenants from the entire holding never came under the consideration of the Court executing the decree. Section 25 of Regulation II of 1886, which was framed for the protection of the raiyat, was never intended to be used to his detriment in the manner in which it has been applied in the case before us. The procedure contemplated by the Legislature is that the Execution Court determines whether or not the decree is to be executed by ejectment, and the safeguard is provided that if the Execution Court decides in favour of ejectment, the order is not to be carried out until it has been sanctioned by the Deputy Commissioner. It could never have been intended that the scope of the order as made by the Execution Court should be widened by the Deputy Commissioner; as a matter of fact, this has been done in the present case without any notice to the raiyat. It is, further, plain that even after the Deputy Commissioner has given his sanction, there may be no ejectment in fact, because, if the decree is satisfied, it is open to the Execution Court to terminate the proceeding. In these circumstances, we are of opinion that the proceedings for ejectment of the petitioners have not been taken in conformity with the provisions of the Regulation and the Statutory Rules on the subject.

4. The question now arises, whether it is competent to this Court to interfere in the exercise of the powers conferred on it by Section 15 of the Indian High Courts Act, 1861. This power of superintendence can be exercised only over Courts which are subject to the Appellate Jurisdiction of the High Court. The question is consequently reduced to this, viz., whether the Courts of the Sub-Deputy Collector, the Sub-divisional Officer and the Deputy Commissioner are Courts subject to the Appellate Jurisdiction of this Court. To determine this question, we must examine the constitution of these Courts as defined in Regulation V of 1893, which was framed with a view to make provision for the Administration of Criminal and Civil Justice in the Sonthal Parganas. Section 7 of this Regulation provides for the establishment, under the Bengal Civil Courts Act, 1887, of two grades of Courts, viz., the Court of the District Judge and the Courts of Subordinate Judges. Section 12 provides for the establishment by the Local Government, under the Sonthal Parganas Act, 1855 (Act XXXVII of 1855), of four grades of Courts, viz., the Court of the Commissioner, the Court of the Deputy Commissioner, the Courts of Sub-divisional Officers and the Courts of Deputy Collectors not in charge of a Sub-division and Sub-Deputy Collectors. Section 9 of the Regulation defines the jurisdiction of the District Judge and of Subordinate Judges, and restricts it to suits of which the value exceeds one thousand rupees, and which are not excluded from their cognizance by Regulation III of '1872. Section 14 similarly deals with the question of the jurisdiction of the Courts of Deputy Collectors or Sub-Deputy Collectors, Sub-divisional Officers or the Deputy Commissioner. It is sufficient to state for our present purpose that a Sub-Deputy Collector has jurisdiction to 'try suits of the value of one hundred rupees, provided such suits are not cognizable either by a Court established in the Sonthal Parganas under the Bengal Civil Courts Act or by a Settlement Officer under the Sonthal Parganas Settlement Regulation. It is consequently plain that there is a fundamental distinction made in the Regulation between the two classes of Courts, namely, the Courts established under the Bengal Civil Courts Act, and the Courts established under the Sonthal Parganas Act. This distinction is accentuated by two circumstances. In the first place, Section 2 of the Sonthal Parganas Act, 1855, read with Section 9 of the Sonthal Parganas Justice Regulation, 1893, provides that in the trial of Civil suits in Courts established under the Bengal Civil Courts Act, the general laws and Regulations are to be applied, whereas by Section 1, Clause 1 of the Sonthal Parganas Act, 1855, the trial of suits in the Courts of officers appointed under the Sonthal Parganas Act is removed from the operation of the general laws and Regulations, and by Section 1, Clause (2), is governed by 'directions' issued by the Lieutenant-Governor. In the second place, under Section 15 of Regulation V of 1893, the Court of the Deputy Commissioner is constituted the District Court, and the Court of the Commissioner is constituted the High Court in relation to all suits tried in the Courts of officers appointed under Section 2 of Act XXXVII of 1855. The position plainly is that the Legislature contemplated the establishment of two entirely distinct series of Courts in the Son that Parganas, each invested with jurisdiction over specified classes of cases to be tried according to the procedure prescribed for each class. In the case before us, as already stated, the suit for rent was valued at less than one thousand rupees, and was rightly tried in the Court of the Sub-Deputy Collector. The execution proceeding was properly commenced in the Court in which the suit had been brought and the decree made. In relation to that Court, the Court of the Commissioner is the High Court, and it is impossible for us to hold that the Court of the Sub-Deputy Collector is a Court subject to the appellate jurisdiction of this High Court. It has been contended that the market value of the land from which the petitioners have been ejected may be proved to exceed rupees one thousand in value. But this is a circumstance obviously immaterial for the determination of the question raised before us. The Sub-Deputy Collector had unquestionably jurisdiction to entertain the suit for rent, to make a decree therein and to execute that decree, if need be, by ejectment of the judgment-debtors from their holding. The Court of the Sub-Deputy Collector in this matter is subordinate to the Court of the Sub-divisional Officer, the Deputy Commissioner and the Commissioner; it cannot in any sense be deemed subject to the appellate jurisdiction of this Court. It has finally been argued that inasmuch as the same person is appointed to act as Sub-divisional Officer and Subordinate Judge, while the same individual is appointed to discharge the duties of the Deputy Commissioner and the District Judge, their orders as Sub-divisional Officer or as Deputy Commissioner are subject to the superintendence of this High Court precisely in the same manner as the orders passed by them in their capacity as Subordinate Judge or District Judge. This argument is obviously fallacious. We are concerned not with the individuals who preside over Courts, but the Courts as Institutions or Tribunals empowered to hear and determine controversies between parties litigant. From this point of view, the Court of the Sub-divisional Officer is entirely distinct from the Court of the Subordinate Judge. The case before us has no analogy to the cases to which our attention was drawn on behalf of the petitioners, namely, Abdul Karim v. Municipal Officer (1903) I.L.R. 27 Bom. 575 affirmed by the Judicial Committee in Municipal Officer v. Ismail (1905) I.L.R. 30 Bom. 246; Rhimbai v. Mariam (1909) I.L.R 34 Bom. 267 in which the question arose as to the status of the Resident and Assistant Resident at Aden; and In re Thomson (1870) 6 B.L.R. 180, where the question arose as to the status of the Court of Recorder of Moulmein. No useful assistance can be derived from these cases, as the question raised before us must be determined in view of the nature of the constitution of the Courts in the Sonthal Parganas established under Section 2 of the Sonthal Parganas Act, 1855. The view we take is in accord with that adopted in Golam Najaf Miah v. Panchanan Gupta (1909) 19 C.L.J. 292.

5. The result is that this Rule is discharged, but we make no order as to costs.


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