(Bibi) Khodaijatul Kobra and Others vs Harihar Missar and Others

Mullick, J.—These two appeals arise out of two orders made by the District Judge of Gaya on 23rd April 1924 setting aside two orders made on 15th December 1923 by the Additional Subordinate Judge of that district.

The events leading up to the last mentioned orders were as follows: Two decrees were made on 21st August 1920 by the Additional Subordinate Judge of Gaya. Some time afterwards, it is not known on what precise date, the Court of the Additional Subordinate Judge was abolished and the business of that Court was transferred to the 3rd Subordinate Judge''s Court. Subsequently the Additional Court was re-established, and on 27th August 1923 two applications were made to it for the execution of those decrees, and on 15th December 1923 the Court held that it had jurisdiction to entertain the applications.

Against this decision two appeals were preferred before the District Judge who disagreed with the Additional Subordinate Judge and held that the Additional Subordinate Judge had no jurisdiction and that the execution applications must be dismissed.

Now the matter turns upon Sections 37 and 38 of the CPC of 1908. The learned District Judge is of opinion that the Additional Subordinate Judge''s Court having ceased to exist, the present Additional Subordinate Judge''s Court cannot be the Court which passed the decree, and, therefore, is not competent to entertain the execution application. The learned Judge does not address himself to the latter part of Sub-clause (b) of Section 37 which provides that if the Court of first instance has ceased to exist or to have jurisdiction to execute the decree, the Court which, if the suit wherein the decree was passed was instituted at that time of making the application for the execution of the decree, would have jurisdiction to try such a suit, shall be included within the expression "the Court which passed the decree," Therefore, even if it be held in this case that the Court of first instance has ceased to exist, the present Additional Subordinate Judge would have jurisdiction to execute the decree if he has jurisdiction to try the suit to which the decree relates. Now there is nothing on the record to show that the present Additional Subordinate Judge has not got jurisdiction to try the suit. Ordinarily Additional Subordinate Judges have jurisdiction over the whole district, and unless that jurisdiction has been curtailed by an express order made by the Local Government u/s 13 of the Civil Courts Act or in consequence of re-arrangement of business made by the District Judge under Sub-clause (2) of that section, it must be assumed that the Additional Subordinate Judge has jurisdiction to try the suit and therefore also to execute the decree.

In point of fact I doubt if it can be said that the Court of the Additional Subordinate Judge has ceased to exist. What has happened is that the Court was temporarily abolished and was reestablished and that at the time when the application for execution was made it was in fact in existence. It is contended that the expression "ceased to exist" means "is not in existence at the time when the application for execution is made." If that view is accepted, then the Court of the present Additional Subordinate Judge, being the Court which passed the decree, has jurisdiction to execute. The argument of the respondents is that if a Court once ceases to exist that Court cannot again be revived, and that although another Court of the same designation is established within the district with the same jurisdiction, it cannot be said that it is the same Court. Now "Courts" in the Civil Courts Act are designated by their titles, and if there are more Courts than one of the same designation, then they are further distinguished by numerals. If the officer presiding over the Court of the 1st Subordinate Judge is temporarily transferred and after an interval another officer is appointed to preside over that Court it would not be a straining of ordinary language to hold that the 1st Court ceased to exist but has been re-established. I am of opinion that in this case the Court of the present Additional Subordinate Judge, being a Court of the same designation, bears the impress of the identity of the Court which was abolished.

In this view the latter part of Section 37, Clause (b) is not required for the purpose of this case; nor has the third sub-clause of Section 13 of the Civil Courts Act any application.

Reference has been made to Section 17 of the Civil Courts Act; that also has no application to this case, because it does not relate to execution proceedings.

The decision in Tara Chand Marwari v. Ram Nath Singh (1909) 4CLJ 473 appears at first sight to be against the view which we have just taken; but on an examination of the facts of the case it would seem that the decision there turned upon the question whether there was at the time when the application for execution was made any additional Subordinate Judge in the district. Apparently there was not and therefore the permanent Subordinate Judge of the district assumed jurisdiction over the case. But while the execution case was proceeding, another officer was posted to the district as Additional Subordinate Judge and the question arose whether the permanent Judge ceased to have jurisdiction to continue the execution proceedings which were pending before. It was held that he had jurisdiction to continue the proceedings. Reference was incidentally made in that decision to Section 17 of the Civil Courts Act, but it is not clear how that section applied.

The result is that upon the provisions of the CPC it seems quite clear that the learned District Judge''s order cannot be supported and that the Additional Subordinate Judge''s order was correct.

The appeals therefore will be decreed with costs. There will be separate costs in each case.

Ross, J.

I agree.