Judgement

Appeal (No. 37 of 1935), by special leave, from a judgment and decree of the High Court (February 9, 1934), affirming an order of the Subordinate Judge of Gaya (November 18, 1932).

The plaintiffs (respondents Nos. 1 to 3) instituted the present suit to enforce two mortgages on March 24, 1931, in the Court of the Settlement Officer of Dumka, Sonthal Parganas. The suit was filed in the Court of the Settlement Officer under s. 5 of the Sonthal Parganas Settlement Regulation (III. of 1872), as amended in 1908, as the bulk of the properties in suit were situated in the Sonthal Parganas, which was then in re visional settlement. The remainder of the suit properties were situated in the Gaya District, outside the Sonthal Parganas. The plaintiffs, on the basis of two mortgages, dated respectively February 2, 1913, and May 16, 1917, claimed Rs. 10,09,000, and, in the event of non-payment, sale of the mortgaged properties.

On the date the suit was instituted, March 24, 1931, the plaintiffs filed a petition praying that the suit might be transferred under s. 5A of the Settlement Regulation, 1872, as amended, to the Court of the District Judge of Gaya, and on the same day the suit was so transferred by the Settlement Officer. On May 19, 1932, the District Judge transferred the suit for trial to the Subordinate Judge of Gaya.

The question in this appeal was whether the Subordinate Judge of Gaya had jurisdiction to try the suit. The present appellant (defendant) contended that he had not.

The relevant statutory provisions appear from the judgment of the Judicial Committee.

The Subordinate Judge held that he had jurisdiction to try the suit.

A revision application to the High Court (Wort and Khaja Mohamad Noor JJ.) was dismissed. The judgments are reported at ( 1934) I. L. R. 13 Pat. 486.

1936. March 31; April 2. Dunne K.C. and Wallach for the appellant. The suit was brought by the mortgagees, the respondents, for the recovery of over 10 lakhs of rupees by sale of the mortgaged properties which were partly inside and partly outside the Sonthal Parganas. The area in question in the Sonthal Parganas was at the date of the suit under settlement proceedings, and the consequence of that was that under s. 5 of the Sonthal Parganas Settlement Regulation (III. of 1872), as amended in 1908, the suit had to be filed before the Settlement Officer. Until completion of the settlement no suit of the present nature could under that Act be brought in any Civil Court in the Sonthal Parganas or anywhere else the suit must be filed before the Settlement Officer, but he, under s. 5A of the Regulation of 1872, as amended, has the power, if he thinks it expedient in the interests of justice that it should be dealt with by a Civil Court, to transfer it to such Court. One of the questions in this case is, to what Court can he transfer ? He must transfer the suit to a Court which has been appointed as a Civil Court within the Sonthal Parganas he could not transfer outside, because Regulation III. of 1872, under which he has got this power, is one which has relation only to the Sonthal Parganas. The special legislation dealing with the Sonthal Parganas originated with The Sonthal Parganas Act (XXXVII. of 1855) see The Bihar and Orissa Code, 1st ed. ( 1917), vol. i., p. 373. That was the Act which excluded from the Sonthal Parganas, unless expressly extended thereto, the general laws and regulations. [Reference was made to the Sonthal Parganas Settlement Regulation

(III. of 1872), ss. 5, 5A, the amendment made in the Sonthal Parganas Settlement (Amendment) Regulation (III. of 1908), the East India (Laws and Regulations) Act, 1870 (33 Viet. c. 3), s. 1, the Bengal, Agra and Assam Civil Courts Act (XII. of 1887), and the Sonthal Parganas Justice Regulation

(V. of 1893).] The High Court held that under the amendment in 1908 of Regulation III. of 1872, the whole of the procedure in the Code of Civil Procedure is applicable proprio vigore in the Sonthal Parganas,