ISHWAR MAHTO Vs. NAIPAL SINGH

JUDGEMENT

(1.) These two miscellaneous appeals are by the two judgment-debtors of Execution Case No. 15 of 1955 and are directed against the common order, dated 10-10-1955 passed therein dismissing their objections to the effect that the decree under execution was void and without jurisdiction.

(2.) The suit (Title Suit No. 17/11 of 1946/ 1944) giving rise to the decree was instituted by the decree-holders on 26-2-1944, in the Court of the Subordinate Judge at Arrah and was one for possession and mesne profits in respect of some lands in village Sunder situate in the sub-division of Sasaram in Shahabad district. The pre liminary decree in the suit for mesne profits was passed on 31-8-1946. For the moment the suit rested there. In the meantime on 6-1-1948, the State Government in the exercise of their powers given to them under Sections 13(1) and 14(1), Bengal, Agra and Assam Civil Courts Act, 1887, issued a Notification (No. 39-IIC-5/47J) whereby they declared that a Subordinate Judge's Court shall be established at Sasaram in the district of Shahabad with effect from 19-1-1948. It read as follows :

(3.) Mr. De appearing for the judgment-debtors in this Court, as already stated above, has challenged the order of the executing Court only to the extent to which it relates to the question arising from the change in the territorial jurisdiction of the Court at Arrah and in support of this contention reliance has been mainly placed by him on a decision of this Court in Babui Dineshwari Kuer v. Ram Narain Singh', 1936 Pat 546 (AIR V 23) (A). In my opinion, that case Is not of much avail to the learned Advocate. The facts of that case are quite distinguishable and it was decided on its own facts. Therein the point in controversy related to the jurisdiction not of the old Court which originally had territorial jurisdiction over the property in dispute in the suit but to the jurisdiction of the new Court subsequently created having jurisdiction over that property. And the specific point raised was as to whether the final decree passed by the new Court on the issue of the notification, under Section 13(1), Bengal, Agra and Assam Civil Courts Act. 1887 in the suit, which was initially instituted before the old Court and was at the time of the notification pending there, was a valid decree. In deciding this point, the learned Judges who heard that case laid reliance on Section 17, Bengal, Agra and Assam Civil Courts Act, 1887, and held that the decree passed by the newly established Court was a valid decree and that the lower Court was wrong to hold that further proceedings in the case should have continued in the old Court where the suit had been initially instituted before the transfer of territorial jurisdiction to the new Court. It is true that in giving that decision their Lordships made certain observations which may be said to be susceptible to an interpretation that on the transfer of territorial jurisdiction to a new Court the old Court loses all its jurisdiction over cases relating to properties lying in the territory transferred to the new Court including even those which are then pending there. But that aspect; of the matter, if I may say so with all respect, on the facts of that case did not arise for decision. Therefore, the observations made in that case to that extent cannot have any binding effect in law and are to be taken as obiter. The specific observations to that effect in the judgment is as follows :