JUDGMENT

Page, C J - The question referred is "Whether the Original Side of a High Court is subordinate to the Appellate Side of the High Court within the meaning of Section 23(3) of the Civil P.C." Section 22 and Section 23 run as follows:

Section 22: Where a suit may be instituted in any one of two or more Courts and is instituted in one of such Courts, any defendant, after notice to the other parties, may, at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, apply to have the suit transferred to another Court, and the Court to which such application is made, after considering the objections of the other parties (if any), shall determine in which of the several Courts having jurisdiction the suit shall proceed.

Section 23. (1): Where the several Courts having jurisdiction are subordinate to the same appellate Court, an application under Section 22 shall be made to the appellate Court. (2). Where such Courts are subordinate to different appellate Courts but to the same High Court, the application shall be made to the said High Court. (3) Where such Courts are Subordinate to different High Courts, the application shall be made to the High Court within the local limits of whose jurisdiction the Court in which the suit is brought is situate.

2. If the decision of Robinson, C.J. and Duckworth, J., in Ramanathan Chetty v. Ramanathan Chetty 1923 Rang. 22, is correct the answer must be in the affirmative. The same view of the meaning and effect of Section 23(3) was taken by the Lahore High Court in Edulji Dinshaw v. Dhanpat Mal Bhagwan Das 1928 Lah. 183. The question, therefore, is whether the construction that was put upon Section 23(3) by the Chief Court in Duckworth, J., in Ramanathan Chetty v. Ramanathan Chetty 1923 Rang. 22, can be sustained. Having regard to the constitution of the High Courts and the scheme of the Letters Patent by which they are created I cannot persuade myself that a Judge of a High Court exercising original civil jurisdiction can be regarded as a Court "subordinate" to such High Courts. I respectfully agree with Ameer Ali, J., that "the original side of the Court is an integral part of the High Court" Fakaruddin Mahomed v. G.L. Garth (1899) 26 Cal. 133 and is not a Court "subordinate" to the High Court within Section 23(3) of the Code. Hindustan Assurance & Mutual Benefit Society Ltd. v. Rail Mulraj 1915 Mad. 608, Jawahir Kumari Debi v. Naresh Chandra Bose 1920 Pat. 365, Hyat Mahomed v. Mannu 1927 Cal. 290, Goculdass Jumnadoss & Co. v. Sadasivier 1928 Mad. 1091, Manindra Chandra v. Lal Mohan Ray 1929 Cal. 358; Section 3 of the Code, and Section 3(15)(24) of the General Clauses Act.

3. In my opinion the construction that was put upon Section 23(3) in Ramanathan Chetty v. Ramanathan Chetty 1923 Rang. 22 was not correct and that case must be regarded as overruled. In the present case an application has been made on the, Appellate Side of the High Court that an inter pleader suit filed on the Original Side of the Court should be transferred to the Court of the Subordinate Judge at Devakottah in the Madras Presidency. All the parties to the suit desire that the transfer should be made. Now, it is apparent from the terms of Section 23 that no provision is made prescribing the Court to which an application for a transfer of the suit under Section 22 to be presented in cases where the suit has been filed, as in the present case, on the Original Side of a High Court. If the suit had been filed in a Court subordinate to a High Court, the High Court clearly would have had jurisdiction to transfer the case Vallabhbhai Naranji v. Chhotalal Purshottamdas & Co. 1917 Bom. 79; why should not the High Court in like manner have jurisdiction to transfer a case filed on the Original Side of the High Court? I see no reason or principle upon which the two cases can be differentiated Tula Ram v. Harjiwan Das (1882) 5 All. 60, is no longer ad rem. What, then, is the proper course