GOPI NATH NAIK Vs. RAJKALI

JUDGEMENT

(1.) This appeal comes before us under curious and somewhat complicated circumstances, There was a suit instituted in the court of the Subordinate Judge of Gorakhpur upon a hypothecation bond, The plaintiff filed a copy of the bond and pleaded loss of the original. The trial court held that the plaintiff had failed to prove by credible evidence the loss of the original, that the suit was not maintainable upon the copy and dismissed it accordingly. There was an appeal to the District Judge of Gorakhpur and this appeal was heard by Mr. R.L. Yorke who then held the office of the District Judge. The effect of his order was to set aside the finding of the trial court, although he did not in terms reverse it. The operative portion of his order was that he remanded the suit to the first court to be tried out on the merits. This order was dated the 4 day of September, 1919, and against it there was an appeal to this Court. In the meantime, however, the trial court was proceeding with the suit, and, on the 19 day of December, 1919, it passed a decree in favour of the plaintiff in the usual form. This Court's order on appeal was passed on the 21 day of May, 1920. For reasons given in the judgment, a Bench of this Court allowed the appeal, set aside the order of the Judge of Gorakhpur and directed as follows: "That the appeal be and it hereby is returned to the court of the said Judge to be re-admitted on the file of pending appeals and disposed of according to law." When this order reached the Gorakhpur district the office of District Judge was filled by Mr. Moir, and Mr. Yorke was holding, in the same judgeship, the office of Additional Judge. Mr. Moir, no doubt believing that this Court desired and intended that the appeal should return, if possible, to the same officer who had passed the order of the 4 day of September, 1919, availed himself of his powers of transfer under Section 24 of the Civil P. C. (Act V of 1908) to send the appeal to Mr. Yorke for disposal. The parties were represented by counsel before Mr. Yorke and although counsel for the defendants seems in the first instance to have stated that he had no instructions, the question in issue was argued before him. Mr. Yorke then recorded a definite finding to the effect that the loss of the original document was proved and that the plaintiff was entitled to maintain his suit upon a copy. He felt himself apparently in a difficulty as to the proper orders to pass in consequence of this finding, because it seemed useless to re-affirm his original order of remand when this had in the meantime been carried out by the trial court and had eventuated in the decree of 19 day of December, 1919. It may be also that he relied upon a passage in the judgment of this Court in which it was said that if the District Judge on further consideration found that the loss of the original document was satisfactorily proved then "an order of remand was correct." It seems useless to speculate as to what the learned Additional Judge would have done if his attention had been called to a ruling of the Full Bench of this Court in Uman Kunwari V/s. Jarbandhan (1908) I.L.R. 30 All. 479, but he contented himself with passing an order which, as it stands, declares a certain sum of money to be due to the plaintiff as a mortgage charge upon certain property, but contains no specific directions fixing any date for the payment of the sum, or laying down the consequences that are to follow upon default of such payment. The District Judge probably believed that a final decree for sale would eventually follow, not upon this decree of his, but upon the trial court's decree of 19 day of December, 1919. It seems to me, however, that we cannot possibly anticipate what complications may arise, or what difficulties the plaintiff may encounter upon making application for a decree absolute for sale. We have to deal with the appeal before us, which is an appeal by the defendants against the order of the Additional Judge, dated the 21 day of March, 1921, the effect of which has been stated above.

(2.) A preliminary objection has been taken to the effect that this order as it stands is not an appealable order at all. Technically I am of opinion that this objection is well-founded; although, if this were the only point to be taken against the appellants, I should have been quite prepared to consider the advisability of allowing them to make such amendments, and to take such other necessary steps, as would convert the appeal before us into a second appeal from a decree. Taking this view of the matter, we have actually heard the appellants on the points taken in their memorandum of appeal. They are clearly not entitled to attack the finding of fact arrived at by the Additional District Judge upon evidence duly considered by him. The one point argued on their behalf has been that, inasmuch as this Court's order of 21 day of May, 1920, directed a remand of the appeal to the court of the Judge of Gorakhpur (obviously meaning thereby the District Judge), that court had no authority to transfer the appeal to the Additional District Judge for disposal and the subsequent proceedings in the court of the Additional District Judge, up to and including the order under appeal, were without jurisdiction. There is some authority for this contention in the case of Sita Ram V/s. Nauni Dulaiya (1899) I.L.R. 21 All. 230. Authority to the contrary has been quoted in some cases decided by the Calcutta High Court, but I think it quite sufficient to point out that this very point was considered by a single Judge of this Court in Pandohi V/s. Sheo Bharose (1914) 12 A.L.J.1094. The learned Judge pointed out that there had been a change in the law in consequence of the redrafting of the present Section 24 of the Civil P. C., corresponding with Section 25 of the former Code of 1882. He held that the older decisions based upon the Code of 1882 were no longer applicable and gave strong reasons for his opinion that, in a case like the present, any order of remand passed by this Court would have no effect to limit the powers of the District Judge under Section 24 of the Civil P. C., unless this Court's order were drawn up in express terms so as to disclose a clear intention of limiting those powers. In the present instance the reverse is the case. The operative portion of this Court's order merely directed the District Judge to dispose of the appeal according to law. One of the ways in which a District Judge can dispose of an appeal according to law is to transfer it to the court of an Additional Judge of his judgeship for disposal. I have no doubt whatever, speaking as one of the Bench which passed this Court's order of 21 day of May, 1920, that if the whole position had been laid before us we should have said that it was better, unless the parties could show cause to the contrary, that the appeal should go back to the particular officer, i.e., Mr. Yorke, who had passed the order of the 4 day of September, 1919. At any rate I am satisfied that there is no force in the contention that the order now under appeal before us is one wholly without jurisdiction and liable to be set aside on that account. This finding is sufficient to dispose of the appeal before us and I would dismiss it with costs. Walsh, J.

(3.) I entirely agree that the appeal fails. It seems to me that the points raised are unsubstantial and that in any event the appellant is debarred by having appeared and taken an order from Mr. Yorke at the second hearing without raising any objection.