Panchanan Das Adhikary vs Beni Prosad Shaw

P.N. Mookerjee, J.—This Rule arises out of a proceeding for execution of an order of eviction passed under the Calcutta Thika Tenancy Act. The Petitioner obtained this order and applied for its execution. To this execution the opposite parties, who were the tenants against whom the above eviction order was passed, filed objections u/s 47 of the Code of Civil Procedure, which contained, inter alia, an objection that the order in question was without jurisdiction and so could not be executed under the law.

This point was taken up for consideration by the learned Munsif before whom the execution was filed, and he having found that the order was without jurisdiction dismissed the execution proceeding.

An appeal from this dismissal order was eventually dismissed by the learned Subordinate Judge and the Petitioner has now come up to this Court against this appellate order.

The material facts are as follows: The Petitioner instituted the proceeding for eviction u/s 5 of the Calcutta Thika Tenancy Act, originally before the First Court of the Munsif at Sealdah, acting as Controller, which had undoubted jurisdiction in the matter. The misc. case, however, was transferred by an order of the learned District Judge, 24-Parganas, to the Court of the Additional (First Additional) Munsif at Sealdah, who was also acting as Controller under the above Act, and the proceeding was ultimately disposed of by that Tribunal which passed the order of eviction against the opposite parties on July 2, 1959. Thereafter, it appears, the above Additional Munsif''s Court was converted into the permanent Court of the Third Munsif, Sealdah, and on June 21, 1962, the present execution was filed before that Court, which had in the meantime been given also the powers of the Thika Tenancy Controller.

The objection which was raised by the opposite parties to the present execution, u/s 47 of the Code of Civil Procedure, was to the effect that, under the Calcutta Thika Tenancy Act, the learned District Judge had no jurisdiction and no authority to transfer any proceeding from one Controller to another, and neither Section 24 of the Code nor Section 13 of the Bengal, Agra and Assam Civil Courts Act would apply to vest him with any such authority and that, accordingly, the transfer of the proceeding as above and the decision or disposal of the same by the transferee Court or Tribunal would be wholly without jurisdiction.

In the view we are taking, it will not strictly speaking be necessary to go into the extent and scope of the learned District Judge''s power in the matter of such transfers. It seems to us, on a consideration of all relevant and available materials that the above Additional Court of the Munsif at Sealdah was exercising, at the relevant time, powers of the Thika Controller over the entire area of Sealdah, which included within it the area which had been assigned to the First Munsif, Sealdah, as Controller. It would, therefore, appear that the learned Additional Munsif concerned would have, independently of the above order of the learned District Judge, jurisdiction to entertain in instant original proceeding, if the same were filed before him. The learned District Judge also had the power to direct proceedings within particular areas to be filed before particular Tribunals having concurrent jurisdiction in the matter in the exercise of his powers of superintendence over the said Tribunals. The instant case was thus at the most a case of just a mere irregularity, so far as the transfer in question was concerned, and the proceeding may well be taken to have been filed before the learned Additional Munsif concerned as Controller, and upon that footing the proceeding before him and his ultimate decision may well be regarded as valid.

It is obvious that, in the instant case, no question of limitation would arise on the day when the above transfer or deeming institution was made and, accordingly, the order of eviction, passed by the learned Additional Munsif (First Court) as Thika Controller, would not be even illegal far less without jurisdiction.

The matter again may well be looked from another point of view. It was open to the Petitioner to ask for return of the application for eviction from the First Munsif for filing it before the Additional Munsif (First Court), who had at the time concurrent jurisdiction in the matter. It was also open to the First Munsif to grant such prayer and, in that context, it cannot be held that the mere transfer of the proceedings from the First Munsif to the Additional Munsif (First Court) would involve any question of jurisdiction.

Lastly, it may also be pointed out that, apart from Section 24 of the Code and Section 13 of the Bengal Agra and Assam Civil Courts Act, the learned District Judge must have in his administrative capacity power to transfer cases from a congested Court or Tribunal to another Court or Tribunal under his superintendence, otherwise competent to deal with the same, except from the point of view of territorial jurisdiction.

In the instant case, of course, there would be no lack of territorial jurisdiction also, as the learned Additional Munsif s territorial jurisdiction extended over, inter alia, the area of the First Munsif, but even in a case where there is such a lack of territorial jurisdiction, the decree or the final order would at the worst suffer from lack of territorial jurisdiction and on well-settled principles objection on this score would not be entertainable by the executing Court or Tribunal.

In the above view we would make this Rule absolute, set aside the order, complained against herein, and direct that the execution case in question do proceed before the Court of first instance in accordance with law.

There will be no order as to costs.

A.K. Dutt, J.

I agree.