L S SHERLEKAR Vs. D L AGARWAL

JUDGEMENT

(1.) THIS reference is made by the Fourth Joint Civil Judge, Junior Division, Nagpur, who himself is the applicant in the case, and it arises out of somewhat peculiar circumstances.

(2.) THE plaintiff in the suit out of which this reference arose is one Sherlekar, and the defendant is one Agarwal. The plaintiff happens to be an Advocate. He instituted a suit in the Court of Civil Judge, Senior Division, Nagpur, being Suit No. 765 of 1964, against the defendant for some money due to him. The case was assigned by the Civil Judge, Senior Division, to the Fifth Joint Civil Judge, Junior Division. It appears that the Fifth Joint Civil Judge Mr. Pande, was deputed to Umrer Court for half a month every month, to perform his duties at Umrer. An office order was, therefore, made by the District Judge at Nagpur to the following effect:-"order dated 26th June 1964. Since Mr. H. S. Pande, Fifth Joint Civil Judge, Junior Division, Nagpur, has been deputed to Umrer for the period from June 1964 as specified in Resolution No. A. 3906 (ii)/64, dated the 19th May 1964 of the High Court, Appellate Side, Bombay, Mr. M. V. Gorwadkar, Fourth Joint Civil Judge Junior Division, Nagpur, will remain in charge of the Court of the Fifth Joint Civil Judge, Junior Division, Nagpur and deal with the urgent, immediate and routine matters of that Court during the period of deputation of Mr. H. S. Pande. Sd/-S. N. Hadole, district Judge, Nagpur.

(3.) IN pursuance to this the plaintiff made two applications before the applicant Judge, one application for taking the case on file and another application for making a preliminary order under Order 38, Rule 1, of the Civil Procedure Code for attachment before judgment on the effects of the defendant. The applicant Judge made the following order:-"this application be put up before the presiding officer as this Court cannot pass judicial orders in the case from the file of Fifth Joint Civil Judge". The plaintiff, on this order being made, approached the District Judge and the District Judge directed the Civil Judge to pass such judicial order as he though proper on the application in accordance with the administrative order of the District Judge, dated June, 26, 1964. The applicant Judge then made an order of attachment and at the same time made this reference to the High Court, contending that the administrative order of the District Judge, dated June 26, 1964, could not require him to pass judicial order an any of the matters pending before the Fifth Joint Civil Judge, and in any event, the District Judge had no authority to issue such order under the provisions of the Bombay Civil courts Act. The result of this attitude of the applicant Judge was that though he made the order of attachment before judgment, the attachment became valueless because of the delay in carrying out the order.