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Jitendra Nath Pal Vs. Birendra Krishna Roy and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtKolkata
Decided On
Reported inAIR1938Cal193
AppellantJitendra Nath Pal
RespondentBirendra Krishna Roy and anr.
Excerpt:
- .....that some two months previously, the district judge of 24-parganas acting under section 13(2), civil courts act, made an order of re-distribution of work hitherto done in the courts of the subordinate judges under his control. in consequence of this re-distribution suits and oases which had hitherto been filed in the second court of the subordinate judge of 21-parganas were assigned in part to the court of the second additional subordinate judge. the property in question in the present case is situated in the area which was assigned to the court of the additional subordinate judge.2. it was contended on behalf of the objector, the appellant before us, that in these circumstances the court had no power to direct the sale of the mortgaged properties, inasmuch as they fell outside the.....
Judgment:

Bartley, J.

1. This is an appeal against the order of the learned Subordinate Judge dated 9th March 1936 rejecting a petition of objection to the execution of a mortgage decree and to the sale of the mortgaged properties. The objection was made by the judgment-debtor under the provision of Section 47, Civil P.C. The application to execute the decree which was a decree passed in Title Suit No. 32 of 1928 in the Court of the same Subordinate Judge was made on 6th June 1934. It would appear that some two months previously, the District Judge of 24-Parganas acting under Section 13(2), Civil Courts Act, made an order of re-distribution of work hitherto done in the Courts of the Subordinate Judges under his control. In consequence of this re-distribution suits and oases which had hitherto been filed in the second Court of the Subordinate Judge of 21-Parganas were assigned in part to the Court of the Second Additional Subordinate Judge. The property in question in the present case is situated in the area which was assigned to the Court of the Additional Subordinate Judge.

2. It was contended on behalf of the objector, the appellant before us, that in these circumstances the Court had no power to direct the sale of the mortgaged properties, inasmuch as they fell outside the territorial area with which the Court was competent to deal under the orders of the District Judge of 24-Parganas. It was contended that the proper order to make was that the decree should be transmitted for execution by sale of the property to the Court of the Second Additional Subordinate Judge. The learned Judge in the Court below overruled this contention. Against that order the present appeal has been preferred. In my opinion the order made by the learned Judge was perfectly right. The application for execution of the decree was filed in Court which passed that decree and prima facie that Court had jurisdiction to execute it. The jurisdiction of the Subordinate Judge extends to territorial limits of his District and we cannot assent to the proposition that the order made under Section 13, Civil Courts Act, which is in essence an order simply for the convenient disposal of the judicial business, can have any effect upon the jurisdiction inherent in the Courts of Subordinate Judges, a jurisdiction which is determined by considerations entirely unconnected with Section 13, Civil Courts Act.

3. It is not necessary to cite the decisions in support of this view as it appears to us to be perfectly clear on the plain reading of Section 13, Civil Courts Act, Section 150, Civil P.C. and Sections 38, 39 of that Code. The view taken by the learned Subordinate Judge was quite right and I hold that ha had jurisdiction to direct the sale of the mortgaged property. This appeal is accordingly dismissed with costs, hearing fee being assessed at three gold mohurs.

Nasim Ali, J.

4. I agree. The only point which was seriously pressed in this appeal is that the second Court of the Subordinate Judge of 24-Parganas had no jurisdiction to sell the mortgaged properties in execution of the mortgage decree after an order was made by the District Judge of that place under Section 13(2), Bengal North Western Assam Civil Courts Act, whereby the civil business of the district was redistributed and the civil business relating to local area within which the mortgaged properties are situated was assigned to the Second Additional Subordinate Judge of that district. It is not disputed that under Section 37, the Court of Second Subordinate Judge which passed the decree is entitled to execute the decree. It was however contended by the learned advocate for the appellant that in view of the provisions contained in Section 39(3) of the Code that Court should now transfer the decree for execution to the Court of the Second Additional Subordinate Judge as the mortgage decree sought to be executed directed sale of immovable properties now situated outside the local limits of the jurisdiction of the said Court. Under Section 13 (1), the Local Government fixes as well as alters the local limits of the jurisdiction of the Civil Courts. The local jurisdiction of a Subordinate Judge which extends over the whole district is not altered by an order of the District Judge under Clause (2) of the section re-distributing the civil business of that. Such an order under Clause (2) of Section 13 therefore cannot operate to take away the jurisdiction of the second Court of the Subordinate Judge which passed the decree conferred upon it by the Local Government under Clause (1) of that section. The Second Additional Subordinate Judge of 24-Parganas cannot also exercise the powers of the second Court of the Subordinate Judge under Section 150, Civil P. C, inasmuch as assignment of business under Section 13(2), Civil Courts Act, is not the same thing as transfer of business within the meaning of Section 150 of the Code.


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