Sm. Bhubaneswari Dasi vs Pulin Krista Rai

This is an appeal against an order of the Subordinate Judge of Deoghar in the Santal Parganas refusing to set aside a sale under O. 21, R. 90, Civil P.C.

On 14th September 1929, the appellant borrowed a sum of Rs. 6,100 by excepting a mortgage bond in favour of the respondent hypothecating a house at Deoghar. On 31st October 1930, the appellant executed another mortgage bond in favour of one Jatindra Mohan Pal for a sum of Rs. 1,200 and under this bond also the same house was hypothecated. On 12th February 1931, the respondent instituted a suit on the first mortgage bond claiming Rs. 7,114-4-0. A preliminary decree was passed in the suit on 10th February 1932, and it was made final on 28th September 1932, for a sum of Rs. 8,920 and odd. On 26th November 1932, the decree-holder respondent started execution proceedings, but the judgment-debtor objected to the valuation put on the mortgaged property which was to be sold. An amin was therefore deputed to inquire into the valuation and he valued the property at Rs. 6,100. Against this valuation, the judgment-debtor came up to the High. Court, but her application was rejected summarily. The property was eventually sold on 14th September 1933, for a sum of Rs. 6,200. On 23rd October 1933, a petition was filed by the judgment-debtor appellant under O. 21, R. 90 to set aside the sale, and 24th November 1933, was fixed for the hearing of the application. The Subordinate judge took up the matter on 24th November 1933, at camp Sarath a place which appears to be 23 to 25 miles from head-quarters (Deoghar). Although the lawyers of the parties were present, it appears that the parties themselves were not present before the Court on that date at camp Sarath. The learned Subordinate Judge after hearing the lawyers rejected the petition to set aside the sale.

It is not necessary at this stage to express any opinion on the propriety or otherwise of the order under appeal in view of the important point of law raised by the learned advocate for the appellant. He contends that in cases where the valuation of a suit was more than Rs. 1,000 the Court had no jurisdiction to take up and dispose of such cases at a place different from the head-quarters. In order to appreciate the force of this argument one has to refer to the various enactments from time to time affecting the jurisdiction of the Courts in the Santal Parganas. The earliest Regulation is Act 37 of 1855, which introduced important changes in the administration of justice in the Santal Parganas. S. 2 of that Regulation makes it clear by its first proviso that:

all civil suits in which the matter in dispute shall exceed the value of one thousand rupees-shall be tried and determined according to the general laws and Regulations in the same manner as if this Act had not been passed.

The Bengal, Agra and Assam Civil Courts Act, (12 of 1887), originally known as the Bengal, the Northwestern Provinces and Assam Civil Courts Act, was enacted in 1887. S. 14 of this Act lays down that:

the Local Government may, by notification in the official Gazette, fix and alter the place or places at which any civil Court under this Act is to be held

and that

all places at which any such Courts are now held shall be deemed to have been fixed under this section.

There is no evidence before us that a Court of the Subordinate Judge was held at any place other than headquarters prior to 1887. Then comes Regn. 5 of 1893, known as the Santal Parganas Justice Regulation. In S. 5 of this Regulation two classes of Civil. Courts have been recognized, namely, (1) Courts established under the Bengal, Agra and Assam Civil Courts Act, 1887, and (2) Courts of officers appointed by the Lieutenant-Governor of Bengal under S. 2 of Act 37 of 1855. The Court of a Subordinate Judge is one of the four classes of. Courts constituted under S. 3 of Act 12 of 1887; and it has been provided in S. 11 of the Santal Parganas Justice Regulation, 1893, (Regn. 5 of 1893), that

nothing in Ss. 3. 5. 7 to 9 (both inclusive) 12, 18, 19, 22 to 25 (both inclusive), 27 to 36 (both inclusive) and 40 of the Bengal, Agra and Assam. Civil Courts Act 1887, shall apply to a Court, established under that Act in the Santal Parganas.

It is significant that in limiting the application of Act 12 of 1887, S. 11 of the Santal Parganas Justice Regulation (5 of 1893), does not include S. 14 of Act 12 of 1887, under which the place of sitting of Courts under the Act are to be fixed or altered. Now, the present proceeding related to a suit of more than Rs. 1,000 in value and by S. 2 of Act 37 of 1855, was triable according to the general laws and not by the special Regulations for administration of justice in the Santal Parganas. Therefore, whatever may be the position with regard to suits valued below Rs. 4,000, suits above that valuation in the Santal Parganas are governed by Act 12 of 1887. At one stage of the case we called for the assistance of the learned Government Pleader and also for a report from the learned Sub-ordinate Judge who disposed of the matter under appeal. The learned Subordinate Judge has reported relying chiefly upon the long established practice prevailing in that district that Sub-divisional Officers invested with the powers of a Subordinate Judge often hold Court away from their head-quarters and that this practice has never been objected to. But in our opinion the practice is most irregular and is likely as in this case to lead to a failure of justice. The clear intention of the Legislature is that cases over the Rs. 1,000 limit should be governed by the ordinary law and practice applicable to the other parts of the province. The view taken of the matter may give rise to some inconvenience to the officers who are to administer justice in the Santal Parganas, but, at the same time, we do not think that a wholesome provision of law should be ignored which might result in great hardships to the litigant public.

We therefore set aside the order of the learned Subordinate Judge and allow this appeal and direct that the application under O. 21, R. 90, Civil P.C., be disposed of according to law. The appellant is entitled to costs.