JUDGMENT

Sulaiman, J. - This appeal was filed in the Court of the District Judge of Bareilly from an order of the election commissioners purporting to act as a civil Court u/s 476, Criminal P.C. As the learned District Judge happened to be one of the Commissioners himself he referred the case to this Court recommending that it should be transferred from his file. Without prejudice to the question whether an appeal lay we directed that the case be transferred to the High Court.

2. A preliminary objection has been taken on behalf of the respondent that if the commissioners had no jurisdiction to proceed u/s 476, Criminal P.C. no appeal lay from their order at all. We thick that the preliminary objection cannot prevail. The commissioners have professedly acted as a Civil Court and assumed jurisdiction u/s 476, Criminal P.C. As an appeal is expressly provided from an order passed by a civil Court u/s 476, Criminal P.C., the present appeal does lie even though the commissioners might have acted without jurisdiction. This principle was laid down as early as 1891 in the case of Jwala Prasad v. Salig Ram (1891) 13 All. 575. That this has been the uniform practice of this Court is shown by the judgment in the case of Walayat Husain v. Ramlal (1914) 12 A.L.J 1113. A Bench of this Court, of which one of us was a member, has recently held in the case of Nasir Khan Vs. Itwari and Others, AIR 1924 All 144 that the right of appeal doee not depend on what a Court ought to have done but on what it actually did. In the cases of Ranjit Misser v. Ramudar Singh (1912) 16 C.L.J. 77 and Kalipada Karmakar v. Shekhar Basini Dasya (1916) 24 C.L.J. 235 Mukherji, J., laid down that where jurisdiction was usurped by a Court in passing an order against which an appeal would lie if it had been passed with jurisdiction, an appeal against the order could not be defeated on the ground that the order was made without jurisdiction. These cases have been recently followed in the case of Bandiram Mooherjee v. Purna Chandra Roy (1918) 45 Cal. 926. There is therefore imple authority for holding that because in appeal would have lain if the Commissioners bad acted with jurisdiction, an appeal lies when they have purported to act as such even though in reality without jurisdiction.

3. Section 476-B, Criminal P.C., provides that an appeal shall lie from an order passed by a civil Court u/s 476 to the Court to which such former Court is subordinate within the meaning of Section 195, Sub-section (3), and this last named section provides that in the case of a civil Court from whose decrees no appeal ordinarily lies, the Court shall be deemed to be subordinate to the principal Court having ordinary civil jurisdiction within the local limits of whose jurisdiction such civil Court is situate. It follows that if the Election Commissioners were such civil Court the appeal from their order passed u/s 476, Criminal P.C., should lie to the District Judge of Bareilly.

4. As a civil appeal was pending before the District Judge, the High Court had jurisdiction u/s 24, Civil P.C., to transfer that appeal to its own file.

5. Even if there had been any difficulty in holding that an appeal lies from an order purporting to have been passed u/s 476, Criminal, P.C., though without authority, we would have no hesitation in treating the appeal as a civil revision and interfering provided we were satisfied that the Election Commissioners had no jurisdiction to act as a civil Court, which they professed to do.

6. Coming to the merits of the appeal we have to consider whether the Election Commissioners were a civil, revenue or criminal Court within the meaning of Section 476, Criminal P.C.

7. It has not been and cannot be, suggested that the Election Commissioners were either a revenue or a criminal Court. Their function was obviously not that of either of such Courts. The learned Election Commissioners themselves were of opinion that they were a civil Court with power to proceed u/s 476, Criminal P.