1. This is a Rule obtained by the plaintiff in a mortgage suit, calling on the other side, who is the defendant No. 2, to show cause why the order of the Subordinate Judge, first Court, Midnapur, dated the 29th November 1913, and the order of the District Judge of that place, dated the 2nd December 1913, should not be set aside.
2. The present plaintiff brought originally a suit upon a certain instrument of mortgage and in that suit he made the mortgagor and the present defendant No. 2 and certain other encumbrancers parties. Subsequently the defendant No. 2 applied to the Subordinate Judge to set aside the decree in the mortgage suit so far as regards him, on the ground that that decree had been passed ex parte. The plaintiff thereupon applied to the District Judge; and the learned District Judge issued a rule on the defendant No. 2 to show cause why the proceedings should not be transferred from the file of the Subordinate Judge before whom the matter was then pending to the file of some other Judge. It is not contested that the defendant No. 2 was served with notice of that rule. The matter came on to be heard before the Subordinate Judge on the 29th November 1913; and, notwithstanding the fact that the defendant No. 2 had been served with the rule and that apparently such fact had been brought to the notice of the learned Subordinate Judge, the learned Subordinate Judge set aside the decree on the mortgage suit so far as regards the defendant No. 2, on the ground that it was, in fact, an ex parte decree.
3. On the 2nd December 1913, the District Judge dismissed the application for transfer, on the ground that he had no jurisdiction to deal* with the matter, the Subordinate Judge having already set aside the decree in the mortgage suit as being ex parte.
4. We think this is a case in which the Court can and ought to interfere, as it seems to us that the learned Subordinate Judge acted in a materially irregular manner when he, knowing that the District Judge was about to consider the application for transfer, proceeded to deal with the case by setting aside the decree which he thought to be ex parte. As a matter of fact, the learned Pleader for the opposite party, who shows cause, has not offered any very active opposition.
5. It seems to us that the two orders mentioned in the Rule should both be set aside and that the matter should go back to the District Judge to decide whether there should be a transfer, and that then, according as the District Judge thinks the proceedings should or should not be transferred to some other learned Judge, the application of the defendant No. 2 will be heard with reference to the setting aside of the decree in the mortgage suit.
6. We are not satisfied in this case as to whose fault it was that the learned Subordinate Judge dealt with this case on the 29th November 1913, and we think we had better make the costs of this Rule abide the result of the application before the learned District Judge for transfer. The hearing fee in this Court is assessed at one gold mohur.