A transfer of a suit or proceeding under Section 24 C.P.C. can only be made when the suit or appeal or other proceedings were validly instituted in the Court seeking to transfer the same.

This revision is directed against the dismissal of an appeal by the court below upholding the preliminary objection which was raised by the respondents that there was no validly presented memorandum of appeal before the said court as required by O. XLI R. 1, C.P. C.

2. The brief facts are these. The predecessor of the plaintiff-respondents filed an application under Section 12 of the U. P. Agriculturists Relief Act, 1934 for the redemption of a usufructuary mortgage. This application was filed against Murari Lal who was the original defendant-applicant in this revision. He died during the pendency of the revision and his legal representatives were brought on record. The trial court decreed the aforesaid suit initiated by the applicant under S. 12 of the U. P. Agriculturists Relief Act and an appeal was taken out by the defendant-appellant, Murari Lal, to this Court and the same was registered as First Appeal No. 55 of 1945 on 8th Jan., 1945. This appeal was heard by a learned single Judge who allowed the same by his order dated 4th Jan., 1961. A special appeal was filed against the judgment of the learned single Judge and the Division Bench by its judgment dated 6th July, 1965 allowed the same and set aside the judgment of the learned single Judge. It was held that the first appeal which had been filed in this Court by the defendant-appellant was not maintainable as the appeal against the trial court s judgment and decree under S. 12 of the U. P. Agriculturists Relief Act lay to the court of the District Judge. The operative part of the Division Bench s judgment was as follows:-

" We, therefore, direct that the record of this case should be sent to the District Judge, Aligarh who shall hear this appeal after giving sufficient notice to the parties. In the circumstances of this case, we direct the parties to bear their own costs of this Court."

3. After the said judgment of the Division Bench, the office of this Court sent back the record of the original suit to the court of the District Judge, Aligarh in Oct., 1965. However, no copy of the judgment passed in the aforesaid special appeal was sent to the Court of the District Judge and so in the normal course, the record of the original suit was consigned to the Record Room. It was only on 21st Feb., 1968 that the application was made on behalf of Murari Lal, the defendant-appellant, in the said Court in which he stated the aforesaid facts and also filed a copy of the order of the Division Bench in the special appeal dated 6th July, 1965. Murari Lal prayed that in view of the said order an early date might be fixed for hearing of the above appeal. On the said application, the District Judge, Aligarh made a request to the office of this Court to send the record of the first appeal No. 55 of 1945 and also a copy of the judgment dated 6th July, 1965 passed by the Division Bench in the said special appeal. The office of this Court complied with the said request and when the aforesaid record had been received by the office of the District Judge, Aligarh, notice was issued to the respondents in the appeal and a date of hearing was fixed in the appeal. On behalf of the respondents, a preliminary objection was raised before the District Judge that as there was no validly presented memorandum of appeal, before his Court, therefore, there was no competent appeal and on this ground, the appeal was liable to be dismissed and there was no necessity to go into the merits of the case. The District Judge upheld the said objection and as stated above, dismissed the appeal as not maintainable on the ground that no memorandum of appeal had been presented in his Court under O. XLI R. 1 C.P.C. It is not disputed before me that in view of Sec. 27 of the U. P. Agriculturists Relief Act, the provisions of O. XLI R. 1 C. P. C. stood attracted to an appeal against the judgment of the trial court in the proceedings under S. 12 of the said Act.

4. The District Judge upheld the preliminary objection