Interpretation of Section 23 of the Code of Civil Procedure and the subordination of a learned Judge of the Original Side to the High Court

JUDGMENT

Rankin, C.J. - In this case a mortgage suit was tried and decreed at Arrah, It would appear that a preliminary decree was passed on the 24th of June 1921and the final decree on the 27th of January 1922. The sale was in April 1922at which the mortgagees purchased the properties. It is true that a writ for delivery of possession was issued in September 1922 by way of execution on the Original Side of the High Court.

2. The present application concerns a suit brought by the defendants to that mortgage suit on the 20th of April 1925. It appears that that suit was brought to set aside the decree of the Subordinate Judge of Arrah on the ground of suppression of processes. Curiously enough the writ of summons was not served for more then a year. An application is now made to us by the defendants in the suit for an order that that suit be transferred to the Court at Arrah which is within the limits of the Province of Behar and Orissa.

3. It is said that the application is competently brought before this Division Bench by virtue of the terms of Section 23 of the Code of Civil Procedure. In our opinion, Section 23 of the CPC does not govern this case so as to make this Division Bench a proper forum to which such an application can be made. It is quite true that the word "District," in the Civil P.C., includes not merely the local limits of what is ordinarily called a District Court, but includes the local limits of a High Court in its ordinary original civil jurisdiction. that is a very different thing indeed from saying that the words "District Court," wherever they appear in the CPC mean and include a High Court in the exercise of its ordinary original civil jurisdiction. If that is what was intended to be laid down by Mr. Justice Fletcher in the case of Kedarnath Mondal v. Ganesh Chandra Adak 12 C.W.N. 466, I do not agree with it.

4. A case has boon referred to - which seems to me very much in point - the case of Fakaruddin v. G.L. Garth [1898] 26 Cal. 133 and speaking for myself and bearing in mind the terms also of Section 3 of the Civil P.C., I decline altogether to hold that a learned Judge of the Original Side is Court subordinate to the High Court. He is the High Court and, in my judgement, we would be going contrary to authorities and upsetting well-settled principles if we entertained the present application. It may be that one consequence of this ruling is that there is no machinery provided by express terms in the Civil P.C., for the particular occasion which has arisen. Even so the applicants may take steps on the ground of malicious abuse of process or on the ground of forum conveniens. We are not here to advise. We will not for the sake of dealing with this case lay down a principle which would interfere with the settled practice and constitution of this Court. In my opinion, this application is incompetent and mast be dismissed with costs.

C.C. Ghose, J.

5. I entirely agree.