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Kasiswar Ray and ors. Vs. Satya Brahma Das - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1927Cal312,101Ind.Cas.133
AppellantKasiswar Ray and ors.
RespondentSatya Brahma Das
Cases Referred and Raja Jagannath Prasad v. Sheo Nandan
Excerpt:
- .....order, it may be mentioned here, was passed on a note which was submitted by the office to the learned judge and which was to the effect that it appeared from the order-sheet that the petition had been filed in that court by mistake because the miscellaneous case, in question had been disposed of by the subordinate judge, second court, barisal. on the same day the petitioners, in accordance with the order passed as aforesaid by mr. k.k. sen, re-filed the application in the second court; and the subordinate judge who presided in that court directed it to be registered and notices to issue on it upon the parties.3. thereafter, presumably because the officer who was presiding in the second court would have no jurisdiction to deal with the petition by reason of the provisions of order.....
Judgment:

Mukerji, J.

1. There was a proceeding under Order 21, Rule 90 of the Code of Civil Procedure, for setting aside a sale. It was on the file of Mr. K.K. Sen who was then the Subordinate Judge of the second Court at Barisal. The proceeding was dismissed for default by Mr. K.K. Sen on the 20th of March 1926. On the 16th of April 1926 Mr. K.K. Sen was put in charge of the business attaching to the Court of the first Subordinate Judge of the district. On the 20th of April 1926 the petitioners, against whom the aforesaid order of dismissal for default was passed, made an application under Order 47, Rule 1 of the Code of Civil Procedure before Mr. K.K. Sen who, as I have already said, had by this time become-the presiding Judge of the first Court. This application was dealt with by Mr. K.K. Sen as the Subordinate Judge, first Court of Barisal, on the 3rd May: 1926 with the following order:

Let the petition be returned to the filing, pleader, Babu Lakshmi Prasanna Banerjee for filing it in the proper Court.

2. This order, it may be mentioned here, was passed on a note which was submitted by the office to the learned Judge and which was to the effect that it appeared from the order-sheet that the petition had been filed in that Court by mistake because the miscellaneous case, in question had been disposed of by the Subordinate Judge, second Court, Barisal. On the same day the petitioners, in accordance with the order passed as aforesaid by Mr. K.K. Sen, re-filed the application in the second Court; and the Subordinate Judge who presided in that Court directed it to be registered and notices to issue on it upon the parties.

3. Thereafter, presumably because the officer who was presiding in the second Court would have no jurisdiction to deal with the petition by reason of the provisions of Order 47, Rule 2 of the Code of Civil Procedure, an application was made by the petitioners before the District Judge? of Bakarganj praying for a transfer of the petition from the second Court to the first Court. The learned District Judges by an order passed on the 8th July 192S refused the said application. He relied upon the decisions of this Court in the cases of Peary hall Mozumdar v. Kamal Kissori Dassia [1880] 6 Cal. 30 and Ramnarain Joshy v. Parmeswar Narain Mahta [1897] 25 Cal. 39 as supporting the view that he took, namely, that inasmuch as the petition was there pending in a Court which had no jurisdiction to deal with it there could be no-order of transfer made by him in respect of that petition. The petitioners have now moved this Court and obtained a. rule to show cause why the case should not be transferred to the first Court of the Subordinate Judge or why such other or further order should not be passed as to this Court may seem fit and proper.

4. The Opposite Party hag not entered appearance in this rule. We have, therefore, looked into the matter as carefully to we could and we have come to the following conclusion.

5. The petition in the present case was filed before the officer who had dismissed the previous proceedings for default, He was asked by this petition to review his own order, The only difficulty which apparently struck the learned Subordinate Judge as being insurmountable was that whereas he had dealt with the original proceedings and dismissed them for default as the Judge of the second Court, when the petition was presented before him he had become the Judge of the first Court. Looking at the provision of the Bengal Civil Courts Act (Act 12 of 1887) it seems to me to be clear that under Section 3 of that Act, it is the Court of the Subordinate Judge which forms a class of civil Courts within the meaning of that Act, and under Section 13, Sub-section (1) the Local Government fixes the local limits of the jurisdiction of any civil Court under that Act. The particular officer who had dismissed the original proceedings was, no doubt, at the time when he passed that order, the presiding Judge of the second Court, and when the application for review was presented before him he had become the presiding Judge of the first Court. that apparently was by reason of the provisions of Clause (2) of Section 13 which empowers a District Judge to assign to each of the Subordinate Judges such civil business as is cognizable by a Subordinate Judge. By assigning some particular civil business to the learned Judge and thus arranging for the administration, the District Judge could not have divested the learned Judge of the jurisdiction which had been conferred on him by the Local Government under the provisions of Sub-section (1) of Section 13. The view we take of the matter is in accord with what was expressed in the cases of Bachu Koer v. Golab Chand [1889] 27 Cal. 272, Munshi Mohamed Kazemali v. Munshi Niamuddin A.I.R. 1922 Cal. 41 and Raja Jagannath Prasad v. Sheo Nandan [1921] 6 Pat. L.J. 304. In our opinion, the learned Subordinate Judge was in error in supposing that because he had by the 20th of April 1926 become the Subordinate Judge of the first Court of Barisal, there was any impediment in his way in dealing with the application for review that was presented before him and, in our opinion, he should not have returned the petition. We are also of opinion that the learned District Judge was in error in supposing that under the peculiar circumstances of the present case the authorities upon which he relied and which have been referred to above can possibly have any application. these two are cases in which, so far as can be gathered from the reports, the proceedings were originally laid in a Court which had no jurisdiction and in that way the cases are clearly distinguishable from the case now before us. We are of opinion that the matter should be dealt with by Mr. K.K. Sen who, we are told is at present the Subordinate Judge of the first Court of the district of Barisal. We accordingly set aside the order passed by the District Judge refusing to transfer the case and we direct that the petition under Order 47, Rule 1 which forms the subject-matter of these proceedings be now transferred to the file of Mr. K.K. Sen so that he may deal with and dispose of it in accordance with law.

6. The Opposite Party not having appeared in this rule we make no order as to costs.

Graham, J.

7. I agree.


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