RAMDHARI LAL Vs. UDAY NARAYAN

JUDGEMENT

(1.) THIS appeal arises out of an order dated 8th of March, 1950, returning the plaint to be presented to the proper Court. The appellants are the defendants in the suit.

(2.) AS this Court is not very much concerned with the merits of the case, it is not necessary Jo give in detail the facts leading to the present appeal. It is enough to state that the respondents had obtained a decree for recovery of certain lands in Title Suit No. 31 of 1938 from the Court of Munsif II, Bhagalpur and that decree was affirmed by this Court in Second Appeal No. 93 of 1940, An application was made thereafter for delivery of possession and delivery of possession was given on 23rd of April, 1943, in Execution Case No. 71 of 1943 of the Court of Munsif II, Bhagalpur. On 18th of April, 1946, the present suit was filed for declaration of title as well as for recovery of possession of 8 bighas 10 kathas 18 dhurs of land. According to the plaintiffs they had been given a short delivery, to the extent of the land in present suit, in the previous execution case. On 23rd of April, 1946, written statement was filed and several issues were framed, the first issue being as to whether the suit was barred by Section 47 of the Code of Civil Procedure. Thereafter, sometime in 1950, the case was taken up for trial and, after the trial was over, the plaintiffs filed an application that, as the Court had no jurisdiction, the plaint might be returned for presentation to the proper Court. The Court heard the parties upon this application and came to the conclusion that it was the executing Court that could determine the question raised by the plaintiffs and that Court was not competent to go into the matter for want of jurisdiction. In effect, the Court decided that it had no jurisdiction to entertain the suit. In that view of the matter, it directed return of the plaint to be presented to the proper Court.

(3.) IN my opinion, so far as the first question, is concerned, the Court is entitled to pass orders under Order 7, Rule 10, Code of Civil Procedure, at any stage of the suit. Order 7, Rule 10, Sub-clause (1), reads as follows :