MANGILAL AGARWALLA Vs. JAMUNALAL AGARWALLA AND ORS.

JUDGEMENT

(1.) THIS is an application under Section 115 of the Code of Civil Procedure and also under Article 227 of the Constitution of India, directed against an order dated 21 -12 -70 passed by the learned District Judge, Goalpara at Dhubri in Misc. Appeal No. 19 of 1970, admitting an appeal and staying the order dated 15 -12 -70 passed by the learned Munsiff. Dhubri in T.S. No. 392 of 1970.

(2.) THE only question for determination here is whether in view of the provisions in Section 21(4) of the Bengal, Agra and Assam Civil Courts Act 1887, (hereinafter called the Act) and the Notification No. H.C.VII -9/53/295 Appointment dated 30th January, 1953 issued thereunder, the learned District Judge was competent to admit the appeal from the orders passed by the learned. Munsiff.

(3.) MR . T.C. Das, the learned Counsel for the Respondents, however, has drawn my attention to the provisions in Section 11(4) of the Act, under which on the occurrence of an event referred to in Sub -section (1) thereof, a District Judge may exercise all or any jurisdiction of the court of a Subordinate Judge (now redesignated Assistant District Judge), Such contingencies are, inter alia, the absence of an Assistant District Judge from the place in which his court is held. Mr. T.C. Das, submits, and it is also not disputed by Mr. Sen, that on 21 -12 -70 the Assistant District Judge was not present at the place where his court is held. Accordingly, although, in view of the provisions in Section 21(4) of the Act and the, notification there under, appeals from the decree or order of a Munsiff would lie only to an Assistant District Judge, the District Judge would, nevertheless, in the event of the absence of the Assistant District Judge have competence to admit such appeal, under Section 11(1) of the Act.