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Judgment
Anantanarayanan, Offg. C.J.
The revision proceeding is upon a short point, and the facts themselves are not in dispute. The revision petitioners are sons of defendants 1 to 3
in O.S. No. 141 of 1962 on the file of the Principal Subordinate Judge Salem, and defendants 1 to 3 executed a mortgage in favour of the Indian
Bank, which filed a separate suit O.S. No. 24 of 1962, for recovery of the mortgage amount. The defence by the sons in that suit was that the
mortgage debt was avyavaharika in character, was not binding on them, and was not for legal necessity. The suit O.S. No. 141 of 1962, was
instituted by a guarantor in respect of the mortgage amount, upon whose guarantee also the claim by the Indian Bank has been filed. The guarantor
claimed, in the present suit, that certain terms of the indemnity bond between these parties were not fulfilled, and hence, that the petitioners (sons of
defendants 1 to 3) were bound to account In this context of facts, the petitioners applied for withdrawal of O.S. No. 24 of 1962 the suit filed by
the Indian Bank, from the Court of the Additional Subordinate Judge to the Court of the Principal Subordinate Judge, for trial along with O.S. No.
141 of 1962, already pending in the latter Court. The learned Subordinate Judge dismissed this application, as, according to him, there was no
justification made out for ordering such a transfer. The short point is whether the learned Principal Subordinate Judge could really make a transfer
of that kind, of a suit pending before the learned Additional Subordinate Judge, once that suit had been allotted to the learned Additional
Subordinate Judge, and that Court was seized of the litigation and had taken judicial cognizance of the suit. The only power which could be
invoked in favour of the petitioner is that embodied in S. 4(a) of the Madras Civil Courts Act III of 1873. The last paragraph of S. 4(a) states that
the Principal Subordinate Judge ""may, from time to time make such arrangements as he thinks fit for the distribution of the business of the Court
among the various Judges thereof."" This certainly enables the Principal Judicial Officer to retain a suit for his own trial, or to distribute it to any of
the other Judicial Officers of the same Court. But, in my view, it does not authorise him to make a re-transfer to his own file of a suit already
distributed to another Judge, of which that Court had taken cognizance. This point was dealt with by Beaumont, C.J., in Shankarji Samalji Dhobi
Vs. Vrajlal Bapalal Patel, but with reference to S. 24, C.P.C., The learned Chief Justice observed:
In my opinion, there is a clear distinction between orders of transfer and administrative orders allocating business to Courts of particular Judges.
When once a Judge has taken cognizance of a suit, any order removing the suit from his file is an order of transfer.
With respect, I agree with the principle of this decision, and hold that the learned Principal Subordinate Judge was correct in his view that S.
4(a) of Central Act III of 1873 could not empower him to make this transfer. It seems to be true that there is one issue in common between the
two suits. But, another reason why no transfer can now be ordered is that the Indian Bank, the plaintiff in the other suit, is not before Court, and is
not a party to the revision proceedings. Hence, the proper remedy of the revision petitioners is to institute a petition under S. 24, C.P.C., before
the District Judge, Salem, for making a transfer which would secure the trial of both the suits by one of the two Judges. In this petition, notice will
have to be given to the Indian Bank, and that party will have to be heard ; after that, in light of the admitted fact that one issue is common to the
suits, the learned District Judge may dispose of the matter according to law. With these observations, the revision is dismissed. There will be no
order as to costs.