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Ajit Kumar Bhunia Vs. Sm. Kanan Bala Deyi - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case No. 2276 of 1959
Judge
Reported inAIR1960Cal565,64CWN246
ActsHindu Marriage Act, 1955 - Sections 3, 13 and 19, ; ;Bengal, Agra and Assam Civil Courts Act, 1887 - Sections 4, 6, 8 and 8(2); ;Constitution of India - Article 233; ;Code of Civil Procedure (CPC) , 1908 - Section 24
AppellantAjit Kumar Bhunia
RespondentSm. Kanan Bala Deyi
Appellant AdvocateChittatosh Mookerjee, Adv.
Respondent AdvocateSipra Gayen, Adv.
Cases ReferredThomas George Gilbert French v. Julia French.
Excerpt:
- p.n. mookerjee, j.1. in this rule a short point arises for consideration. the point, however, is of considerable and far-reaching importance and it has assumed some amount or complexity too, due to certain recent judicial pronouncements. the question, involved, is the question of jurisdiction of the learned additional district judges, or, rather, the additional judges, under the bengal, agra and assam civil courts act and other sister statutes. it covers a wide field and its decision one way or the other, may amount to much for the administration of law in this state, nay, for the entire union, over the whole of which its reaction may be felt in varying degrees. but for the recent decision of the supreme court in the case of kuldip singh v. the state of punjab, : 1956crilj781 , the.....
Judgment:

P.N. Mookerjee, J.

1. In this Rule a short point arises for consideration. The point, however, is of considerable and far-reaching importance and it has assumed some amount or complexity too, due to certain recent judicial pronouncements. The question, involved, is the question of jurisdiction of the learned Additional District Judges, or, rather, the Additional Judges, under the Bengal, Agra and Assam Civil Courts Act and other sister statutes. It covers a wide field and its decision one way or the other, may amount to much for the administration of law in this State, nay, for the entire Union, over the whole of which its reaction may be felt in varying degrees. But for the recent decision of the Supreme Court in the case of Kuldip Singh v. The State of Punjab, : 1956CriLJ781 , the petitioner, who challenges the lower court's jurisdiction in the instant case before us, could have possibly advanced no argument whatsoever. The decisions of this Court, which may have any bearing on the above question of jurisdiction, are practically uniform and unanimous and all in one way, barring one or two which, again, appear to be covered by a Full Bench decision of this Court, and they are all against the petitioner. The petitioner, however, seeks to re-open the said question and he claims a decision in his favour, relying upon the above decision of the Supreme Court and upon the later Punjab High Court decision (Janak Dulari v. Narayan Dass, purporting to explain the above Supreme Court decision and apply the same to the Punjab statute, the Punjab Courts Act, (Act VI of 1918).

2. The point arises in this way. The petitioner, as husband, instituted Suit No. 27 of 1957 in the court of the District Judge of Midnapore, under Section 13 of the Hindu Marriage Act, 1955, for dissolution of his marriage with the opposite party who was his wife by the said marriage. Fox our present purpose, it is not necessary to recite the various allegations, on which the above suit was founded, nor it is necessary to advert to any of the various defences or counter-allegations which were taken or made to the suit by the wife opposite party. It is enough to state, for purposes of this Rule that, on or about the 22nd August, 1958, the learned District Judge transferred the aforesaid suit to the First Court of the Additional District Judge, Midnapore, for disposal and, thereupon, on or about March 16, 1959, the petitioner filed, before the learned Additional District Judge, Sri Tapendra Kumar Pal, an application contending, inter alia, that the said learned Judge had no jurisdiction to try the aforesaid suit and praying for re-transfer of the same to the learned District Judge. The petitioner's contention was that, in view of the terms of Section 19 of the Hindu Marriage Act, 1955, read with the definition Section (Section 3(b)), the District Judge and the District Judge alone had jurisdiction to entertain and try the instant suit and, in the absence of any Notification of the State Government, empowering him to try such suits, the learned Additional District Judge had no jurisdiction in the matter, notwithstanding the transfer (assignment) to him by the learned District Judge, such transfer, though, presumably, under Section 8(2) of the Bengal, Agra and Assam Civil Courts Act, not being, according to the petitioner, competent, -- and not purporting also --to confer jurisdiction, not possessed by the transferee court. The petitioner's contention was rejected by the learned Additional District Judge. Hence the present Rule.

3. Under Section 19 of the Hindu Marriage Act, 1955, every petition under the said Act has to be 'presented to the District Court within the local limits of whose ordinary original civil jurisdiction the marriage, was solemnized, or the husband and the wife reside or last resided together,' and the definition Section, Section 3(b), enacts that, in the aforesaid Act, 'unless the context otherwise requires, 'District Court' means in any area for which there is a City Civil Court, that Court, and in any other area the principal Civil Court of original jurisdiction, end includes any other Civil Court which may be specified by the State Government by notification in the Official Gazette, as having jurisdiction in respect of the matters dealt with in the Act'' and under Section 21 of the aforesaid Act, it is provided that 'subject to the other provisions, contained in the said Act, and to such rules as the High Court may make in that behalf, all proceedings under the said Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908.'

4. These are the relevant provisions of the Act, under which the suit in question was instituted, so far as the point of jurisdiction is concerned and the provisions of the other relevant statute, namely, the Bengal, Agra and Assam Civil Courts Act (Central Act XII of 1887) (hereinafter referred to also as the Bengal Act or Bengal Statute for brevity and convenience), which may have a direct bearing on this point, are :

Section 3: 'There shall be the following classes of Civil Courts under this Act, namely:

(1) The Court of the District Judge:

(2) the Court of the Additional Judge;

(3) the Court of the Subordinate Judge; and

(4) the Court of the Munsif.'

Section 4: 'The State Government may alter the number of District Judges. Subordinate Judges and Munsifs now fixed.'

Section 6: '(1) Whenever the office of District Judge or Subordinate Judge is vacant by reason of the death, resignation or removal of the Judge or other cause, or whenever an increase in the number of District or Subordinate Judges has been made under the provisions of Section 4, the State Government or, as the case may be, the High Court may fill up the vacancy or appoint the Additional District Judges or Subordinate Judges ........' and Section 8 : '(1) When, the business pending before any District Judge requires the aid of Additional Judges for its speedy disposal, the State Government may, having consulted the High Court,.. appoint such Additional Judges as may be requisite.

(2) Additional Judges, so appointed, shall discharge any of the functions of a District Judge which the District Judge may assign to them, and, in the discharge of those functions, they shall exercise the same powers as the District Judge.'

5. Section 24 of the Code of Civil Procedure also, which entitles the District Judge to transfer cases to his subordinate courts, may be quoted in its relevant part, in view of certain purported observations, made in some of the decided cases, and the aforesaid Section 21 of the Hindu Marriage Act, 1955, applying the Code to suits under the said Act. The material part of the aforesaid Section 24 of the said Code runs as follows:

'(1) ..... of its own motion .... the District Court may at any stage-

(a) transfer any suit, appeal or other proceeding, pending before it, for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, ..........

(3) For the purposes of this section, Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court.' and the meaning of the term 'District Court', as used in the Code can be ascertained from the definition of 'District Court', contained in Section 2(4), which runs as follows:

' 'district' means the local limits of the jurisdiction of a principal Civil Court of Original Jurisdiction (hereinafter called a 'District Court') ......' thus leading to the connotation that the 'District Court' means 'the principal Civil Court of Original Jurisdiction.'

6. These are all the relevant statutory provisions on the above Question of jurisdiction which is now before us for decision.

7. Turning to the decided cases, we would refer first to the Full Bench decision of this Court in the case of Rup Keshwar Lal v. Mt. Jaijai Bibi 19 Cal WN 791 : (AIR 1916 Cal 561) and then to the two subsequent decisions in the cases, Mohator Rahman v. Abdur Rahim ILR 48 Cal 53 : (AIR 1921 Cal 210) and Lal Behari Basak v. Akhil Chandra Santra 27 Cal WN 315 : (AIR 1923 Cal 469). No later case of this Court appears to be strictly relevant on the point and, of the earlier and intervening decisions, it would suffice to mention those in the cases of Rakhal Chandra Tewari v. Secretary of State, 8 Cal LJ 34; Bidya Moyee Debva v. Surya Kant Acharya, ILR 32 Cal 875; Mahomed Musa v. Abdul Hassan Khan 18 Cal WN 612 : (AIR 1914 Cal 616); and the two cases of Jogesh Chandra v. Rasik Lal Saha AIR 1919 Cal 133 and Jogabandhu Talukdar v. Nanda Lal Sirkar AIR 1919 Cal 720.

8. The three earliest, viz. 8 Cal LJ 34, ILR 32 Cal 875 and 18 Cal WN 612 : (AIR 1954 Cal 616) are covered by the Full Bench decision, referred to above, and, of them, the first, namely 8 Cal LJ 34, was approved. On the above decisions, it is practically settled in this Court, -- and that also is the position in the other High Courts (vide, Mutsaddi Lal v. Mule Mal ILR 34 All 205 and Makhan Lal v. Sri Lal, ILR 34 All 382 and Inderdeo Ojha v. Emperor, AIR 1945 Pat 322). -- that the Additional District Judge has, on transfer or assignment of a particular case to him by the learned District Judge under Section 8 of the Bengal, Agra and Assam Civil Courts Act, all the powers, authority and jurisdiction of the learned District Judge himself, so far as that case is concerned. The question now is whether this settled law has been unsettled or should be deemed to have become unsettled, by reason of the Supreme Court's decision, referred to above and relied on by the petitioner, and whether a different view should now be taken on the point in the light of that decision and the interpretation put upon it by the Punjab High Court in the case of , and the point of jurisdiction should be decided in favour of the petitioner and against the opposite party upon that different view and upon the interpretation, put upon the Hindu Marriage Act, 1955, in the said Punjab case cited, and the learned Additional District Judge, in the instant case, should be held to have had no jurisdiction to try, or, to proceed with the trial of, the present suit.

9.We have carefully examined the petitioner's contention, but we are unable to accept the same. We do not think that the Supreme Court's decision, relied on by him, has, either directly or indirectly, overruled the practically unanimous view of this Court on the question of jurisdiction of the learned Additional District Judges and on the effect of transfer (assignment) of cases to them by the learned District Judge under Section 8(2) of the Bengal, Agra and Assam Civil Courts Act or under the corresponding or analogous provisions of sister enactments. The transfer or assignment in all these cases may well be brought under the aforesaid Section 8(2) of the Bengal, Agra and Assam Civil Courts Act, or, in the case of sister enactments, under the corresponding or analogous provisions thereof, though Section 24 of the Code of Civil Procedure also has sometimes been referred to in this connection.

10. There is no dispute here that, under the aforesaid sections (Sections 8(2) and 24) the learned District Judge has the power to transfer or assign cases, pending before him, to an Additional District Judge, provided the latter is a competent court for the purpose and provided also there is nothing to the contrary in the particular statute, under which the particular action has been launched. In either case, then, the only point will be whether the learned Additional District Judge is a competent court For the purpose of the particular case and whether there is anything in the particular statute, under which the proceeding in question has been taken or started, to prohibit or preclude such transfer of assignment and that question must be decided in the light of the Government Notification of his appointment and the relevant sections of the Bengal, Agra and Assam Civil Courts Act, namely. Sections 4, 6 and 8, and the aforesaid particular statute.

11. It is convenient to state here that, under Section 8(2) of the Bengal, Agra and Assam Civil Courts Act, or the corresponding provisions of sister enactments, as we shall see hereafter, the transfer or assignment of business by the learned District Judge to the Additional Judges carried with it the necessary power or jurisdiction to deal with the same. It is to be noted also that the Additional District Judges have always been taken to be 'Additional Judges' under Section 8(2) of the Bengal, Agra and Assam Civil Courts Act and, in all the cases, cited above, that position has been accepted end the matter has been dealt with on that footing. Clearly, also, that view is entirely right.

12. The appointment of Additional District Judges is made under Article 233 of the Constitution, read with Sections 4, 6 and 8 of the Bengal, Agra and Assam Civil Courts Act (or corresponding provisions of the sister enactments in case of other States). The appointment, as far as a particular State is concerned, is made by the particular State Government (Governor) in consultation with the High Court of that particular State. Section 4 of the Bengal, Agra and Assam Civil Courts Act refers to the fixation of the cadre strength and Section 6 to the filling up of vacancies. In Section 6, particular mention is made of 'Additional District Judges' and Section 8 provides for 'Additional Judges' to aid the District Judge in the disposal of the business before him. Reading the three sections together in the light of the Constitution Article 233, there can be little doubt that the 'Additional District Judges' are Additional Judges within the meaning of Section 8 and their appointment or purported appointment under that section is really their posting in a particular District to aid the particular District Judge in the disposal of the business, pending before him. The instant appointment also fulfils and answers the above description and forms no exception to the above rule.

13. The two relevant Notifications, relating to Shri Pal's appointment, culminating in his appointment and posting as Additional District and Sessions Judge of Midnapore, are as follows :

'24-Parganas. -- No. 4720G. A/5C-68/56. --10th December, 1957. -- The Governor is pleased to appoint the persons, named below, to the West Bengal Higher Judicial Service, on probation, with effect from the 13th December, 1957, and to post them to Alipore, 24-Parganas, for training :

(2) Shri Tapendra Kumar Pal, Advocate, Son of Shri Radhika Ranjan Pal.'

'Midnapore. -- No. 1840G. A./5C-39/58. --14th May, 1958. -- The Governor is pleased to appoint Shri Tapendra Kumar Pal, a member of the West Bengal Higher Judicial Service, on probation, to be, until further orders, Additional District and Sessions Judge, Midnapore.'

14. The other Notification, which we have come across in the above connection is the one appointing Shri Pal, in addition to his above duties, to preside over the Special Court, set up under the West Bengal Criminal Law Amendment (Special Courts) Act and conferring upon him the necessary powers for the purpose. That Notification, however, which is in these terms :

'Midnapore. -- No. 2125G.A./5C-39/58. --5th June, 1958. -- In exercise of the power confer-red by Sub-section (2) of Section 2, read with Sub-section (1) of Section 9 of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 (West Bengali Act XXI of 1949), the Governor is pleased to appoint Shri Tapendra Kumar Pal. Additional District and Sessions Judge, Midnapore, to be, in addition of his duties, Judge to preside over the Midnapore Special Court, constituted under the late Judicial Department's Notification No. 4632J., dated the 22nd August, 1952, in place of Shri Samarendra Nath Mukherji, who was appointed under this department's notification No. 1774G.A., dated the 11th June, 1957, and whose services have ceased to be available,''

is not relevant for our present purpose.

15. On the above materials, therefore, it will be safe to hold that the Additional District Judge in the present case was an 'Additional Judge' within the meaning of Section 8 of the Bengal, Agra and Assam Civil Courts Act and, if that was so, he was competent to deal with the instant suit on transfer (assignment) of the same to him under Section 8(2) by the learned District Judge, provided the Hindu Marriage Act, 1955 under which the said suit was instituted, contained nothing against such transfer, either expressly or by necessary implication.

16. In our opinion, there is no such prohibition in the above statute. It is true that, under Section 19, the application for dissolution of marriage, which is to be registered as a suit, has to be presented in the District Court and under the relevant definition Section, Section 3(b), the District Court means 'in any area for which there is a City Civil Court, that Court, and in any other area the principal Civil Court of original jurisdiction, and includes any other Civil Court which may be specified by the State Government, by notification in the Official Gazette, as having jurisdiction in respect of the matters dealt with in this Act.' The only effect of the above, however, is that such an application has to be presented to that Court alone in view and in the light of the Supreme Court decision in Kuldip's case, supra, and applying the same to the aforesaid Bengal statute, as distinguished from all other courts, mentioned in the said statute, or, in other words, the District Judge and the District Judge alone has, vis-a-vis, particularly. Additional District Judges or Additional Judges, the power to entertain the same and it must be initiated or instituted before him. The Supreme Court decision, however, does not go further and does not restrict or even purport to restrict the District Judge's power to transfer pending proceedings to Additional Judges, that is to Additional District Judges, under Section 8(2) of the Bengal, Agra and Assam Civil Courts Act, or the corresponding provisions of sister enactments. As a matter of fact, the Supreme Court itself expressly, adverted to this power of transfer and affirmed the same. But it was of no avail in the particular case before their Lordships as, there, the presentation itself of the particular appeal was to the learned Additional District Judge and not to the learned District Judge. The Additional District Judge was certainly not competent to receive the appeal, there being no delegation or transfer (assignment) of that function to him by the learned District Judge under the relevant section of the particular statute before the court, namely, Section 21 (2) of the Punjab Courts Act (Act VI of 1918), and, accordingly, he had no jurisdiction in the matter. It is true that the Supreme Court held that, under the aforesaid Punjab Act, the court of the Additional Judge,--and so, possibly, the court of the Additional District Judge also, --would be a separate and distinct class of courts from the court of the District Judge and, in that view, if it be applicable to the Bengal Statute, the Additional Judge or the Additional District Judge, as mentioned in the said statute, would not be, properly speaking, Judges of the court of the District Judge, as held in some of the decisions of this Court (vide AIR 1919 Cal 133 and AIR 1919 Cal 720, and also the Full Bench decision in the case of 19 Cal WN 791 : (AIR 1916 Cal 561) (supra)) which conceded to such Additional Judges or Additional District Judges the power of receiving a particular proceeding, even without any transfer or assignment of the same by the District Judge and, to that extent, the said decisions might be said to be affected by the above Supreme Court decision. But that would hardly be material for our present purpose, as the instant case, where the presentation was duly made to the learned District Judge in accordance with the relevant statute (The Hindu Marriage Act, 1955) and in full conformity with law, would be wholly untouched and unaffected by the above distinction, pointed out by the Supreme Court. We may just pause here to mention that their Lordships of the Supreme Court were careful enough to confine themselves only to the Punjab statute, which was actually before them, and expressly refrained from making any observation in regard to the other analogous statutes and expressly excluded such statutes from their general observations, made in the case and, in particular, they pointed out the absence of any mention of 'Additional District Judges' in the Punjab Act before them, namely the Punjab Courts Act (Act VI of 1918), which apparently differs in this respect from our statute, the Bengal, Agra and Assam Civil Courts Act and also its own predecessor namely, the Punjab Courts Act, 1888 (Act XII of 1888) (vide Behari Lal Bulaki Ram v. Kundan Lal, 27 Cal WN 509: (AIR 1922 PC 361). It may be that there is not much in the above reservation, but, even overlooking the same and also the possible distinction, on which it was founded, and applying the Supreme Court decision, Supra, at its widest to the Bengal Statute before us, the position in the present case would not, in our opinion, be affected or altered in any way. As we have pointed out above, the case before the Supreme Court was not one of transfer by the District Judge to the Additional District Judge but a case of direct presentation of the appeal to the latter authority, which could not have been justified, unless the Additional District Judge were held to be a Judge of the court of the District Judge, or a co-ordinate authority with the District Judge, having, upon his 'appointment' simpliciter under Section 8(1) of the Bengal statute or any other analogous law, all the powers of the District Judge, including inter alia and in particular the power to receive and entertain cases etc., even without an order of transfer (assignment) under Section 8(2), or other analogous law, or any appropriate notification in that behalf. This particular plea of justification appears to have been negatived by the Supreme Court and, to that extent, as pointed out above, some of the decisions of this Court, or, more correctly, some of the observations therein may not retain their validity and authority and may not claim correctness after the above pronouncement of the Supreme Court, but, with all respect to the learned Judges of the Punjab High Court, who decided the case of , we are unable to read anything more in the said Supreme Court decision, either from the express observations of their Lordships, or even by necessary implication, and this, apart from the express reservation, made by their Lordships and the words of caution uttered by them, in the course of their judgment. We are also, with due respect to the learned Judges of the Punjab High Court, unable to agree, with them in their view that, under the Hindu Marriage Act, proceedings under the said Act lie only to the District Judge in the sense that an Additional District Judge cannot deal with them even on proper transfer to him by the learned District Judge under the Punjab Civil Courts Act or its sister enactments, e.g. the Bengal, Agra and Assam Civil Courts Act or other analogous laws. Under the Hindu Marriage Act, Section 19/Section 3(b), the utmost that can be said is that the proceeding is to be started before the learned District Judge; that is, the application, on which it would commence, would have to be presented before him and that he and he alone would have the power to entertain it or its initiation, but, once it is entertained by him, it is certainly amenable to his powers of assignment or transfer under the relevant Civil Courts Act and such powers have not been curtailed or taken away or affected in any way by the Hindu Marriage Act, 1955, that is, in regard to proceedings under it. Under Section 8(2) of the Bengal Act and the corresponding section (Section 21(2)) of the Punjab Act, the District Judge, so it appears to us, is even entitled to assign the function of dealing with suits under the Hindu Marriage Act, including reception of the application or initial entertainment of the proceedings, to the Additional Judge or the Additional District Judge and, on such assignment or transfer, the latter would be entitled to exercise all necessary powers in such suits with full jurisdiction as all such powers would be automatically conferred upon him on such assignment, following as a necessary corollary, in view of the terms of the particular statute or statutes, namely, Section 8(2) of the Bengal Act and Section 21 (2) of the Punjab Act. With all respect, therefore, it seems to us that the Punjab High Court in the case, cited and relied on by the petitioner here, apprehended unreal difficulties in the matter of proceedings under the Hindu Marriage Act from the decision of the Supreme Court, cited before them, and from the Act itself and no such apprehension is justified or need be felt and, in our opinion, the proceedings under the Hindu Marriage Act are entertainable and triable by the Additional District Judge on proper assignment of the same or of the relative functions under Section 8(2) of the Bengal, Agra and Assam Civil Courts Act or Section 21(2) of the Punjab Courts Act or corresponding sections of other sister enactments notwithstanding Kuldip's case and Sections 19 and 3(b) of the Hindu Marriage Act, 1955. The petitioner's objection to jurisdiction was, therefore, rightly rejected by the learned Additional District Judge and this Rule must fail.

17. A few words more before we conclude. We have incidentally referred to Section 24 of the Code of Civil Procedure in an earlier part of this judgment. That was done, as, in some of the cases of this Court (vide e.g. 18 Cal WN 612 : (AIR. 1914 Cal 616) supra, in particular), that was apparently taken as the source of the District Judge's power of transfer in allied matters. Strictly speaking, however, that section is not directly relevant in such cases. There is one important difference between that section and Section 8(2) of the Bengal, Agra and Assam Civil Courts Act on the point of the District Judge's power of transfer or assignment. Section 24 of the Code of Civil Procedure postulates transfer to a competent court, such competency to be found in and by virtue of some other statutory provision, notification or otherwise and not under or by virtue of anything, contained in the said section. Section 24, itself. Section 8(2) of the Bengal, Agra and Assam Civil Courts Act is, however, differently worded and, under it, the necessary authority or competency, in the absence of anything to the contrary in the nature of the particular proceeding or in the particular statute, under which the same has been taken, is inherent in the assignment itself And the mere assignment, as stat-ed hereinbefore, carries with it, in such cases, the necessary competency or authority, provided, of course, -- but provided only, -- that the transferee Judge is an 'Additional Judge', -- and, as seen above, an Additional District Judge is obviously such 'Additional Judge' in the relevant context. Under Section 24, the District Judge can transfer only to a competent court, such competency to be found otherwise and outside the section. Under Section 8(2) of the Bengal, Agra and Assam Civil Courts Act, however, the District Judge can transfer to an Additional Judge or an Additional District Judge and, as noted hereinbefore, in the absence of anything to the contrary, the Additional Judge's competency in that behalf can be assumed or presumed, as it follows from the assignment itself in view of the terms of the said Section 8(2) itself. Reliance on Section 24, therefore, may not solve the problem, particularly when, in view of the above Supreme Court pronouncement, it may not be proper to regard the Additional District Judge as a Judge of the Court of the District Judge and as possessing, accordingly, co-ordinate authority with him.

18. Before we conclude we may also, incidentally refer to the Bombay decision in the case of Thomas George Gilbert French v. Julia French. ILR 39 Bom 136 : (AIR 1914 Bom 267 (1)) to which, too, our attention was drawn during argument. That case, however, is easily and ex facie distinguishable, as there, as held by their Lordships -of the Bombay High Court, in view of the express terms of the relevant statutory provision, as quoted and referred to by them, namely, Section 16 of the Bombay Civil Courts Act (Act XIV of 1869), the learned District Judge had no power to transfer the particular proceeding (a suit, under the Divorce Act of 1869, for dissolution of marriage) to the Assistant Judge, to whom such transfer was purported to have been made. That decision, therefore, can have no bearing on the point, now before us, and we may safely put it aside. Indeed, the difference in the terms of the particular statute, the Bombay Civil Courts Act (Act XIV of 1869), as noted by the learned Judges of the Bombay High Court and the corresponding statute, now under consideration, is too patent to be ignored and no-thing more need be said about the said Bombay decision on the present occasion.

19. In the light of the foregoing discussion, this Rule fails and it is discharged, but, having regard to the point at issue and the nature of the considerations, noted above, we would direct the parties to bear their own costs in this Court.

Niyogi, J.

20. I agree.


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