An order for transfer without notice is an order tainted with material irregularity, and it is necessary to give notice to the judgment-debtor and hear them before proceeding with the case, as mandated by Sec.24 of the Code of Civil Procedure.

Dayal, J.

1. This is an application in revision by the judgment-debtor. The material facts are these:

The opposite party obtained a decree for possession of the disputed lands and for costs from the Court of the Subordinate Judge, First Court, Monghyr. Thereafter, the decree-holders filed Execution case, No. 12 of 1950 in the same Court. On the 16th June 1953, the learned Subordinate Judge held that he had no jurisdiction to execute the decree and observed that the remedy of the decree-holders was to apply for transmission of the decree to the Court of the Subordinate Judge, Begusarai, by a regular petition. After the above order, the decree-holders applied before the learned District Judge, Monghyr, to transfer the execution case to the Subordinate Judge, Begusarai, and the learned District Judge, without issuing notice to the petitioner, ordered the execution case to be transferred to the Court of the Subordinate Judge, Begusarai.

2. Being thus aggrieved, the judgment-debtor has filed this civil revision. It is contended by Mr. Prem Lall for the petitioner that the provisions as to notice contained in Sec.24 of the Code of Civil Procedure have been disregarded and the order for transfer made without notice was without jurisdiction.

3. The relevant provisions in Sec.24(1) of the Code of Civil Procedure run as follows:

"On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own notion without such notice, the High Court or the District Court may at any stage- (a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any court subordinate to it and competent to try or dispose of the same. ..... "

4. This obviously means that no notice is necessary if the Court acts suo motu. If an application is made, notice must be given by the Court The provision as to notice is imperative, and an order for transfer without notice is an order which, even if not without jurisdiction, is certainly tainted with material irregularity.

5. This is also the view taken in numerous reported cases, the view taken being:

"An order under Sec.24 of the Civil Procedure Code, transferring a case from one Court to another passed by a District Judge on the application of one party and without giving notice to the opposite party, is an order which, even if not without jurisdiction, is certainly tainted with material irregularity, Ram Das V/s. Habib-Ullah, ILR 53 All 916: (AIR 1933 All 178 (1) (A).

Such orders made without notice, have, therefore, been invariably set aside in revision.

6 I have already stated that the decree-holders applied before the learned District Judge to transfer the execution case to the Court of the Subordinate Judge, Begusarai, and the learned District Judge ordered the execution case to be transferred to the Court of the Subordinate Judge, Begusarai, without issuing notice to the petitioner. It is manifestly clear from the provisions of Section 24 and the trend of the decisions which I have indicated above that such an order as has been passed by the learned District Judge in this case without issuing notice to the petitioner cannot be upheld and must be set aside. The judgment-debtor, who had no notice, was certainly prejudiced and, in the interest of justice, it is necessary that, after notice to the judgment-debtor, and after hearing him, an order for transfer, if necessary, may be made.

7. Mr. Lal Narayan Sinha, appearing for the opposite party, conceded that, in the circumstances of this case, notice on the judgment-debtor was necessary. He, however, strongly contended that the power of revision should not be exercised in this case. He submitted that the court would be giving effect to mere technicalities of procedure at the expense of justice. Mr. Sinhas contention does not appear to me to be sound. It is not a case of giving effect to mere technicalitieis of procedure. In this case, the learned District J